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Case3:08-cv-04373-JSW Documentl86 Filed03/l0/l4 Pagel of 6
CINDY COHN (SBN 145997) [email protected]
RACHAEL E. MENY (SBN 178514) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945)
3 JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060)
AUDREY W ALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) 4 ANDREW CROCKER (SBN 291596)
ELECTRONIC FRONTIER FOUNDATION KEKER & V AN NEST, LLP 5 815 Eddy Street 633 Battery Street
San Francisco, CA 94109 6 Telephone: (415) 436-9333
Fax: (415) 436-9993
San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188
7 RICHARD R. WIEBE (SBN 121156)
8 [email protected] THOMAS E. MOORE III (SBN 115107) [email protected]
LAW OFFICE OF RICHARD R. WIEBE 9 One California Street, Suite 900
San Francisco, CA 94111
ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303
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Telephone: (650) 813-9700 Fax: (650) 813-9777
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ARAM ANT ARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
Counsel for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
) CAROL YN JEWEL, TASH HEPTING, ) YOUNG BOON HICKS, as executrix of the ) estate of GREGORY HICKS, ERIK KNUTZEN) and JOICE WALTON, on behalf ofthemselves ) and all others similarly situated, )
) Plaintiffs, )
) v. )
) NATIONAL SECURITY AGENCY, el al., )
) Defendants. )
CASE NO. 08-CV -4373-JSW
PLAINTIFFS' NOTICE OF EX PARTE MOTION AND EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE
Date: March 10, 2014 Time: I :30 p.m. Courtroom 11, 19th Floor The Honorable Jeffrey S. White
IMMEDIATE RELIEF REQUESTED CRITICAL DATE: TUESDAY MORNING, MARCH 11, 2014
Case No. 08·CV-4373·JSW PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE
Case3:08-cv-04373-JSW Document186 Filed03/10/14 Page2 of 6
1 NOTICE OF EX PARTE MOTION
2 PLEASE TAKE NOTICE that on Monday, March 10, 2014 at 1:30 p.m., or as soon
3 thereafter as they may be heard by the Court at Courtroom II, 19th Floor, 450 Golden Gate Ave.,
4 San Francisco, CA, plaintiffs will move ex parte for a temporary restraining order and, after a
5 hearing has been held, an order prohibiting, enjoining, and restraining defendants National Security
6 Agency, United States of America, Department of Justice, Barack H. Obama, Keith B. Alexander,
7 Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the
8 "government defendants'') and all those acting in concert with them from destroying any evidence
9 relevant to the claims at issue in this action, including but not limited to prohibiting the destruction
10 of any telephone metadata or "call detail" records.
11 Notice of this motion has been given to opposing counsel. Attached to the Cohn
12 Declaration filed herewith as Exhibit E are email exchanges between parties' counsel between on
13 February 26, 2014, and this morning, March 10,2014, in which plaintiffs have consistently stated
14 their intentions to seek relief from this court unless the government clarifies its intention to
15 preserve all relevant evidence in the two cases consistent with its obligations in both cases and the
16 preservation order in Jewel v. NSA that reaches the same telephonic records at issue in First
17 Unitarian Church v. NSA.
18 This matter became an emergency matter because on Friday, March 7, based on a mistaken
19 belief that no preservation order existed for the material at issue, and without consultation with
20 plaintiff or this Court, the FISC denied the government's motion to be allowed to preserve the
21 telephone records it had collected. Late Friday, the government served notice in the First Unitarian
22 case that it intended to begin destroying the records.
23 REASONS WHY RELIEF SHOULD BE GRANTED
24 The government defendants have given notice that they plan to begin destroying telephone
25 metadata ("call detail record") evidence relevant to this lawsuit tomorrow, Tuesday Morning,
26 March 11, 2014. ECF No. 85 in First Unitarian v. NSA, No. 13-cv-3287-JSW. Plaintiffs
27 respectfully request that the Court today issue an immediate temporary restraining order to prevent
28 the destruction of evidence before the Court has an opportunity to determine whether destruction of
Case No. 08·CV-4373·JSW 1 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE
Case3:08-cv-04373-JSW DocumenU86 Filed03/10/14 Page3 of 6
this evidence is contrary to the Court's November 16, 2009 evidence preservation order (ECF
2 No. 51) or otherwise contrary to the government defendants' discovery obligations.
3 The purpose of a TRO is to preserve the status quo and prevent irreparable harm "just so
4 long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood
5 o/Teamsters, 415 U.S. 423, 439 (1974). This is exactly what is needed here.
6 There has been litigation challenging the lawfulness of the government's telephone
7 metadata collection activity, Internet metadata collection activity, and upstream collection activity
8 pending in the Northern District of California continuously since 2006. The government has been
9 under evidence preservation orders in those lawsuits continuously since 2007.
10 The frrst-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead
II case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications
12 Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court
13 entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv-
14 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-
15 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation
16 order remains in effect today as to that case.
17 In 2008, movants filed this action-Jewel v. NSA-and this Court related it to the Hepting
18 action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel
19 evidence preservation order remains in effect as of today.
20 The government has never sought to seek clarification of its preservation obligations
21 regarding telephone metadata records from this Court or raised the issue with plaintiffs. Instead,
22 the government defendants chose to raise the issue of preservation of telephone metadata records in
23 an ex parte proceeding before the Foreign Intelligence Surveillance Court, without any notice to
24 plaintiffs and without mentioning its obligations with regard to the same telephone records in Jewel
25 v. NSA and Shubert v. Obama. Plaintiffs learned of the government's motion by reading the news
26 media, and asked counsel for the government defendants to explain why they had not told the FISC
27 about the Jewel evidence preservation order. See Cohn Decl, Exh. E.
28 Indeed, the government is aware and has acknowledged that destruction of the information
Case No. 08-CV-4373-JSW 2 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE
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in question may conflict with the preservation orders issued in this and related cases: "While the
2 Court's Primary Order requires destruction of the BR metadata no longer than five years (60
3 months) after its initial collection, such destruction could be inconsistent with the Government's
4 preservation obligations in connection with civil litigation pending against it. Accordingly, to
5 avoid the destruction of the BR metadata, the Government seeks an amendment to the Court's
6 Primary Order that would allow the NSA to preserve and/or store the BR metadata for non-analytic
7 purposes until relieved of its preservation obligations, or until furthcr order of this Court under the
8 conditions described below." Government's Motion for Second Amendment to Primary Order,
9 FISC No. BR 14-01 (February 25, 2014). Although the government's motion in the FISC did not
10 discuss the preservation order in Jewel, this preservation order includes the same records at issue in
II First Unitarian.
12 LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER
13 "A plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that
14 he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
IS equities tips in his favor, and that an injunction is in the public interest." Network Automation. Inc.
16 v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 20(1) (quoting Winter v. Natural Res.
17 Defense Council. Inc., 555 U.S. 7 (2008)).
18 A. Likelihood of Success
19 The Jewel preservation order required the Government to "preserve evidence that may be
20 relevant to this action." The Jewel complaint alleged unlawful and unconstitutional acquisition of
21 call-detail records, including the "call-detail records collected under the National Security Agency
22 (NSA) bulk telephony metadata program" that the Government proposed to destroy.
23 Plaintiffs sought, among other relief, an injunction "requiring Defendants to provide to
24 Plaintiffs and the class an inventory of their communications, records, or other information that
25 was seized in violation of the Fourth Amendment." Complaint, Prayer for Relief. This would be
26 impossible if the records are destroyed. While the Plaintiff ultimately want the call-detail records
27 destroyed at the conclusion of the case, there is no doubt the call-records "may be relevant" in the
28 interim.
Case No. 08-CV-4373-JSW 3 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE
Case3:08-cv-04373-JSW Document186 Filed03/10/14 PageS of 6
The Jewel order also required the Government to cease "destruction, recycling, relocation,
2 or mutation of such materials." Thus, the proposed destruction would be in direct violation of the
3 Jewel preservation order.
4 B. Irreparable Harm
5 If the government proceeds with its planned destruction of evidence, the evidence will be
6 gone. This is by definition irreparable.
7 c. Balance of Equities
8 While the Government contends it is required by thc FISC to destroy the records
9 immediately, the FISC order belies this assertion. The FISC denied the government's motion
10 without prejudice to bringing another motion with additional facts and the FISC plainly was not
II informed of the preservation order in Jewel or even of its existence. The FISC clearly
12 contemplated that the evidence destruction could wait while the government prepared and filed
13 another motion, and continue until the Court considered and ruled on the motion.
14 D. Public Interest
15 These records are both an affront to the rights of millions of Americans and proof of their
16 violation. Plaintiffs have no objection to severe restrictions on the Government's right to access
17 and use the infonnation, which will address the public interest in the documents being destroyed.
18 However, it remains in the public interest to wait a short period of time before taking action, so that
19 the fate of the documents can be addressed in an orderly fashion.
20 The necessity for this ex parte application could have been easily avoided had the
21 government defendants followed the discovery and evidence preservation practices customary in
22 this District. They could have, but did not, raised the issue of preserving telephone metadata
23 records in the CMC statement meet-and-confer process in September 2013 (three months after the
24 government defendants publicly acknowledged the phone records program), or at the Case
25 Management Conference itself on September 27, 2013. They could have, but did not, raised this
26 issue in the CMC statement meet-and-confer process in the related First Unitarian action during
27 October 2013, or at the First Unitarian Case Management Conference itself on November 8, 2013.
28 Thereafter, at any point between November 8 and now the government defendants could
Case No. 08-CV-4373-JSW 4 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE
Case3:08-cv-04373-JSW DocumenU86 Filed03/10/14 Page6 of 6
have raised the issue with plaintiffs by the meet-and-confer process, but they did not. They could
2 have sought a further Case Management Conference before the Court or proceeded to raise the
3 issue by noticed motion. Any of these manifold alternatives would have permitted the Court and
4 the parties to address the issue in an orderly manner. By failing to pursue any of these alternatives,
5 the government has made a temporary restraining order essential. Plaintiffs believe that no security
6 is necessary under the circumstances. Plaintiffs respectfully request that the Court issue the order
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DATE: March 10, 2014 Respectfully submitted,
s/ Cindy Cohn CINDY COHN LEETIEN KURT OPSAHL JAMES S. TYRE MARKRUMOLD ANDREW CROCKER ELECTRONIC FRONTIER FOUNDATION
RICHARD R. WIEBE LA W OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III ROYSE LAW FIRM, PC
RACHAEL E. MENY PAULA L. BLIZZARD MICHAEL S. KWUN AUDREY WALTON-HADLOCK BENJAMIN W. BERKOWITZ KEKER & VAN NEST LLP
ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN
Counselfor Plaintiffs
Case No. 08-CV -4373-JSW 5 PLAINTIFFS' EX PARTE MOTION FOR A TEMPOR RY RESTRAINING ORDER TO PREVENT THE
GOVERNMENT FROM DESTROYING EVIDENCE .
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Case3:08-cv-04373-JSW Document186-l Filed03/l0/l4 Pagel of 2
CINDY COHN (SBN 145997) [email protected] LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303) JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060) ANDREW CROCKER (SBN 291596) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Telephone: (415) 436-9333 Fax: (415) 436-9993
RICHARD R. WIEBE (SBN 121156) [email protected] LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Fax: (415) 433-6382
Attorneys for Plaintiffs
RACHAEL E. MENY (SBN 178514) [email protected] PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945) AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188
THOMAS E. MOORE III (SBN 115107) [email protected] ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 813-9700 Fax: (650)813-9777
ARAM ANT ARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
) Case No.: 08-cv-4373-JSW CAROLYN JEWEL, TASH HEPTING, ) YOUNG BOON HICKS, as executrix of the ) estate of GREGORY HICKS, ERIK KNUTZEN) DECLARATION OF CINDY COHN and JOICE WALTON, on behalf of themselves ) and all others similarly situated, ) Courtroom 11, 19th Floor
) The Honorable Jeffrey S. White Plaintiffs, )
) v. )
) NATIONAL SECURITY AGENCY, el al., )
) Defendants. )
Case No. 08-cv-4373-JSW DECLARATION OF CINDY COHN
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Case3:08-cv-04373-JSW Document186-1 Filed03/10/14 Page2 of 2
I, CINDY COHN, hereby declare:
I. I am a lawyer duly licensed to practice law in the State of California and before this
district. I am the Legal Director of the Electronic Frontier Foundation, counsel of record for the
plaintiffs.
2.
documents:
I have attached to this Declaration true and correct copies of the following
• Exhibit A: Complaint for Constitutional and Statutory Violations, Seeking
Damages, Declaratory and Injunctive Relief in Carolyn Jewel, et 01., v. National
Security Agency, et 01., No. OS-cv-4373-JSW (N.D. Cal.) filed September IS, 200S;
• Exhibit B: First Amended Complaint for Constitutional and Statutory
Violations, Seeking Declaratory and Injunctive Relief in First Unitarian Church of
Los Angeles, et 01. v. National Security Agency, et 01., Case No. l3-cv-32S7-JSW
(N.D. Cal.) filed on March 7, 2014;
• Exhibit C: Evidence Preservation Order in Carolyn Jewel, el al., v. National
Security Agency, et al., No. OS-cv-4373-JSW (N.D. Cal.) filed November 16, 2009;
• Exhibit D: Evidence Preservation Order in 111 Re: National Security Agency
Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal)
dated November 6,2007; and
• Exhibit E: Emails between plaintiffs and defendants regarding preservation
issues.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed on March 10,2014, at San Francisco, California.
lsI Cindy Cohn CINDY COHN
Case No. 08-cv-4373-JSW DECLARATION OF CINDY COHN
Case3:08-cv-04373-JSW Document186-2 Filed03/l0/l4 Pagel of 56
Exhibit A
Exhibit A
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page2 of 56
ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997)
2 cindy~eff.org LEE TIEN (148216)
3 KURT OPSAHL (191303) KEVIN S. BANKSTON (217026)
4 JAMES S. TYRE (083117) 454 Shotwell Street
5 San Francisco, CA 94110 Telephone: 415/436-9333; Fax: 415/436-9993
6 RICHARD R. WIEBE (l21156)
7 [email protected] LAW OFFICE OF RICHARD R. WIEBE
8 425 California Street, Suite 2025 San Francisco, CA 94104
9 Telephone: 415/433-3200; Fax: 415/433-6382
10 THOMAS E. MOORE III (115107) tmoore@).Jlloorelawteam.com
11 THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor
12 Palo Alto, CA 94301 Telephone: 650/798-5352; Fax: 650/798-500]
13 Attorneys for Plaintiffs
14 UNITED STATES DISTRICT COURT
] 5 NORTHERN DISTRICT OF CALIFORNIA .' .
] 6 CAROLYN JEWEL, TASH HEPTING. GREGO~ .. :¥J HIC~~~ ) '" CASE NO: ERIK KNUTZEN and JOICE WALTON,onbe . f f j;,: r~)! (:.j :~~." Q
17 themselves and all others similarly situated, . V C: . 18
19 vs.
Plaintiffs, ) ) ) ) )
20 NATIONAL SECURITY AGENCY and KEITH B. ) ALEXANDER, its Director, in his official and personal )
21 capacities; MICHAEL V. HAYDEN. in his personal capacity; ) the UNITED STATES OF AMERICA; GEORGE W. BUSH, )
22 President of the United States, in his official and personal ) capacities; RICHARD B. CHENEY, in his personal capacity; )
23 DA VID S. ADDINGTON, in his personal capacity; ) DEPARTMENT OF JUSTICE and MICHAEL B. )
24 MUKASEY, its Attorney General, in his official and personal )
CLASS ACTION ell.' COMPLAINT FOR 18 CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DAMAGES, DECLARATORY. AND INJUNCTIVE RELIEF
capacities; ALBERTO R. GONZALES, in his personal ) 25 capacity; JOHN D. ASHCROFT, in his personal capacity; ) DEMAND FOR JURY
JOHN M. MCCONNELL, Director of National Intelligence. in) TRIAL 26 his official and personal capacities; JOHN D. NEGROPONTE. )
in his personal capacity; and DOES #1-100, inclusive, ) 27 )
Defendants. ) 28,, __________________________________ )
COMPLAINT
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1. Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring th
2 action and allege upon personal knowledge and belief as to their own acts, and upon information a d
3 belief (based on the investigation of counsel) as to all other matters, as to which allegations Plainti s 4
5 believe substantial evidentiary support exists or will exist after a reasonable opportunity for further
investigation and discovery, as follows: 6
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PRELIMINARY STATEMENT
This case challenges an illegal and unconstitutional program of dragnet
9 communications surveillance conducted by the National Security Agency (the "NSA") and other
10 Defendants in concert with major telecommunications companies ("Defendants" is defined
11 collectively as the named defendants and the Doe defendants as set forth in paragraphs 25 through
12 38 below).
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14 3. This program of dragnet surveillance (the "Program"), first authorized by Executive
15 Order of the President in October of 200 I (the "Program Order") and first revealed to the public in
16 December of 2005, continues to this day.
17 4. Some aspects of the Program were publicly acknowledged by the President in
18 December 2005 and later described as the "terrorist surveillance program" ("TSP").
19 5. The President and other executive officials have described tlillSP's activities, which 20
were conducted outside the procedures of the Foreign Intelligence Surveillance Act ("FISA") and 21
without authorization by the Foreign Intelligence Surveillance Court ("FISC"), as narrowly targeti g 22 23 for interception the international communications of persons linked to Al Qaeda.
24 6. The Attorney General and the Director of National Intelligence have since publicly
25 admitted that the TSP was only one particular aspect of the surveillance activities authorized by th
26 Program Order.
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1 7. In addition to eavesdropping on or reading specific communications, Defendants
2 have indiscriminately intercepted the communications content and obtained the communications
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records of millions of ordinary Americans as part of the Program authorized by the President.
8. The core component of the Program is Defendants' nationwide network of
sophisticated communications surveillance devices, attached to the key facilities of
telecommunications companies such as AT&T that carry Americans' Internet and telephone
communications.
9. Using this shadow network of surveillance devices, Defendants have acquired and
continue to acquire the content of a significant portion of the phone calls, emails, instant messages, 10 11 text messages, web communications and other communications, both international and domestic,
12 of practically every American who uses the phone system or the Internet, including Plaintiffs and
13 class members, in an unprecedented suspicionless general search through the nation's
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10. In addition to using surveillance devices to acquire the domestic and international
communications content of millions of ordinary Americans, Defendants have unlawfully solicited
and obtained from telecommunications companies such as AT&T the complete and ongoing 18 19 disclosure of the private telephone and Internet transactional records of those companies' millions
20 of customers (including communications records pcrtaining to Plaintiffs and class members),
21 communications records indicating who the customers communicated with, when and for how Ion ,
22 among other sensitive information. 23
24 11. This non-content transactional information is analyzed by computers in conjunction
with the vast quantity of communications content acquired by Defendants' network of surveillance 25 26 devices, in order to select which communications are subjected to personal analysis by staff of the
27 NSA and other Defendants, in what has been describcd as a vast "data-mining" operation.
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I 12. Plaintiffs and class members are ordinary Americans who are current or former
2 subscribers to AT&T's telephone and/or Internet services.
3 13. Communications of Plaintiffs and class members have been and continue to be
4 illegally acquired by Defendants using surveillance devices attached to AT&T's network, and
5 Defendants have illegally solicited and obtained from AT&T the continuing disclosure of private
6 communications records pertaining to Plaintiffs and class members. Plaintiffs' communications or
7 activities have been and continue to be subject to electronic surveillance.
8 14. Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the
9 communications and records of Plaintiffs and class members, to require the inventory and
10 destruction of those that have already been seized, and to obtain appropriate statutory, actual, and
II punitive damages to deter future illegal surveillance.
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JURISDICTION AND VENUE
This court has subject matter jurisdiction over the federal claims pursuant to 28
14 U.S.C. § 1331, 18 U.S.C. § 2712, and 5 U.S.C. § 702.
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16. Plaintiffs arc informed, believe and thereon allege that Defendants have sufficient
contacts with this district generally and, in particular, with the events herein alleged, that Defendan s
are subject to the exercise of jurisdiction of this court over the person of such Defendants and that 18 19 venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
20 17. Plaintiffs arc informed, believe and thereon allege that a substantial part of the even
21 giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents
22 of Defendants may be found in this district.
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18. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
omissions giving rise to this lawsuit occurred in this district and division.
19. Plaintiffs have fully complied with the presentment of claim provisions of28 U.S.C
§ 2675, as required for their claims under 18 U.S.C. § 2712. Plaintiffs timely served notice of their
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1 claims on the NSA and the Department of Justice on December 19,2007, and over six months hav
2 passed since the filing of that notice.
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PARTIES
20. Plaintiff Tash Hepting, a senior systems architect, is an individual residing in
Livennore, California. Hepting has been a subscriber and user of AT&T's residential long distanc
telephone service since at least June 2004. 7
8 21. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a
9 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T's residential
10 long distance telephone service since February 1995.
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22. Plaintiff Carolyn Jewel is an individual residing in Petaluma, California. Jewel, a
database administrator and author, has been a subscriber and user of AT&T's WorldNet dial-up
Internet service since approximately June 2000.
23. Plaintiff Erik Knutzen is an individual residing in Los Angeles, CaliforniaKnutzen,
16 a photographer and land use researcher, was a subscriber and user of AT&T's WoridNet dial-up
17 Internet service from at least October 2003 until May 2005. Knutzen is currently a subscriber and
18 user of AT&T's High Speed Internet DSL service.
19 24. Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a 20 high technology purchasing agent, is a current subscriber and user of AT&T's WoridNet dial-up 21 Internet service. She has subscribed to and used this service since around April 2003. 22 25. Defendant National Security Agency (NSA) is an agency under the direction and
23 control of the Department of Defense that collects, processes and disseminates foreign signals 24 intelligence. It is responsible for carrying out the Program challenged herein. 25 26. Defendant Lieutenant General Keith B. Alexander is the current Director of the NS ,
26 in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for 27 supervising and implementing all operations and functions of the NSA, including the Program. 28
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27. Defendant Lieutenant General (Ret.) Michael V. Hayden is the fonner Director of
2 the NSA, in office from March 1999 to April 2005. While Director, Defendant Hayden had ultima e
3 authority for supervising and implementing all operations and functions of the NSA, including the
4 Program.
5 28. Defendant United States is the United States of America, its departments, agencies,
6 and entities.
29. Defendant George W. Bush is the current President of the United States, in office 7
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9 since January 2001. Mr. Bush authorized and continues to authorize the Program.
10 30. Defendant Richard B. Cheney is the current Vice President of the United States, in
office since January 200 I. Defendant Cheney was personally involved in the creation, develop me t II
and implementation of the Program. 12
13 31. Defendant David S. Addington is currently the chiefofstafTto Defendant Cheney,
in office since October 2005. Previously, Defenda~ddington served as legal counsel to the Office 14
of the Vice President. DefendantAddington was personally involved in the creation, development 15
and implementation of the Program. On information and belief, DefendantAddington drafted the 16
documents that purportedly authorized the Program. 17
32. Defendant Department of Justice is a Cabinet-level executive department in the 18
United States government charged with law enforcement, defending the interests of the United Sta s 19
according to the law, and ensuring fair and impartial administration of justice for all Americans. 20
33. Defendant Michael B.Mukasey is the current Attorney General of the United States, 21
in office since November 2007. As Attorney General, DefendanMukasey approves and authorizes 22
the Program on behalf of the Department of Justice. 23
34. Defendant Alberto R. Gonzales is the former Attorney General of the United States, 24 25 in office from February 2005 to September 2007, and also served as White House Counsel to
26 President George W. Bush from January 2001 to February 2005. Defendant Gonzales was
27 personally involved in the creation, development and implementation of the Program. As Attorne
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page8 of 56
General, Defendant Gonzales authorized and approved the Program on behalf of the Department 0
2 Justice.
3
4
5
35. Defendant John D. Ashcroft is the fonner Attorney General of the United States, in
office from January 2001 to February 2005. As Attorney General, Defendant Ashcroft authorized
and approved the Program on behalf of the Department of Justice. 6
7 36. Defendant Vice Admiral (Ret.) John M. McConnell is the Director of National
8 Intelligence ("DNI"), in office since February 2007. Defendant McConnell has authority over the
9 activities of the U.S. intelligence community, including the Program.
10 37. Defendant John D. Negroponte was the first Director of National Intelligence, in
11 office from April 2005 to February 2007. As DNI, Defendant Negroponte had authority over the
12 activities of the U.S. intelligence community, including the Program.
13 38. At all times relevant hereto, Defendants Doe Nos. 1-100, inclusive (the "Doe
14 defendants"), whose actual names Plaintiffs have been unable to ascertain notwithstanding
15 reasonable efforts to do so, but who are sued herein by the fictitious designation "Doe # I" through
16 "Doe # 100," were agents or employees of the NSA, the DOJ, the White House, or were other
17 government agencies or entities or the agents or employees of such agencies or entities, who
18 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true
19 names and capacities when ascertained. Upon infonnation and belief each fictitiously named
20 Defendant is responsible in some manner for the occurrences herein alleged and the injuries to
21 Plaintiffs and class members herein alleged were proximately caused in relation to the conduct of
22 Does 1-100 as well as the named Defendants.
23
24
25 39.
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
THE PRESIDENT'S AUTHORIZATION OF THE PROGRAM
On October 4,2001, President Bush, in concert with White House Counsel Gonzale ,
26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidenti I
27 order (the "Program Order") authorizing a range of surveillance activities inside of the United Stat s
28
Case3:08-cv-04373-JSW DocumenU86-2 Filed03/10/14 Page9 of 56
without statutory authorization or court approval, including electronic surveillance of Americans'
2 telephone and Internet communications (the "Program").
3 40. This Program of surveillance inside the United States began at least by October 6,
4 2001, and continues to this day.
5 41. The President renewed and, on information and belief, renews his October 4, 200 I
6 order approximately every 45 days.
7 42. The Program of domestic surveillance authorized by the President and conducted b
8 Defendants required and requires the assistance of major telecommunications companies such as
9 AT&T, whose cooperation in the Program was and on information and belief is obtained based on
10 periodic written requests from Defendants andlor other government agents indicating that the
II President has authorized the Program's activities, andlor based on oral requests from Defendants
12 andlor other government agents.
13 43. The periodic written requests issued to colluding telecommunications companies,
14 including AT&T, have stated and on information and belief do state that the Program's activities
15 have been determined to be lawful by the Attorney General, except for one period of less than six
16 days.
17 44. On information and belief, at some point prior to March 9,2004, the Department of
18 Justice concluded that certain aspects of the Program were in excess of the President's authority an
19 in violation of criminal law.
20 45. On Tuesday, March 9, 2004, Acting Attorney General James Corney advised the
21 Administration that he saw no legal basis for certain aspects of the Program. The then-current
22 Program authorization was set to expire March II, 2004.
23 46. On Thursday, March 11, 2004, the President renewed the Program Order without a
24 certification from the Attorney General that the conduct it authorized was lawful.
25 47. On information and belief, the March II Program Order instead contained a
26 statement that the Program's activities had been determined to be lawful by Counsel to the Preside t
27 Alberto Gonzales, and expressly claimed to override the Department of Justice's conclusion that th
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 PagelO of 56
Program was unlawful as well as any act of Congress or judicial decision purporting to constrain t
2 President's power as commander in chief.
3 48. For a period of less than sixty days, beginning on or around March II, 2004, writte
4 requests to the telecommunications companies asking for cooperation in the Program stated that th
5 Counsel to the President, rather than the Attorney General, had determined the Program's activitie
6 to be legal.
7 49. By their conduct in authorizing, supervising, and implementing the Program,
8 Defendants, including the President, the Vice-President, the Attorneys General and the Directors 0
9 NSA since October 2001, the Directors of National Intelligence since 2005 and the Doe defendants
10 have aided, abetted, counseled, commanded, induced or procured the commission of all Program
II activities herein alleged, and proximately caused all injuries to Plaintiffs herein alleged.
12 THE NSA'S DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED
13
14
15
16
17
18
THROUGH AT&T FACILITIES
50. AT&T is a provider of electronic communications services, providing to the public
the ability to send or receive wire or electronic communications.
51. AT&T is also a provider of remote computing services, providing to the public
computer storage or processing services by means ofan electronic communications system.
52. Plaintiffs and class members are, or at pertinent times were, subscribers to and/or
customers of AT&T's electronic communications services and/or computer storage or processing 19
20 services.
21 53. AT&T maintains domestic telecommunications facilities over which millions of
22 Americans' telephone and Internet communications pass every day .
. 23 54. These facilities allow for the transmission of interstate and/or foreign electronic voi e
24 and data communications by the aid of wire, fiber optic cable, or other like connection between the
25 point of origin and the point of reception.
26 55. One of these AT&T facilities is located at on Folsom Street in San Francisco, CA
27 (the "Folsom Street Facility").
28
Case3:08-cv-04373-JSW Documentl86-2 Filed03/l0/l4 Pagell of 56
56. The Folsom Street Facility contains a "4ESS Switch Room." A 4ESS switch is a
2 type of electronic switching system used to route long-distance telephone communications transiti
3 through the facility.
4 57. The Folsom Street Facility also contains a "WorldNet Internet Room" containing
5 large routers, racks of modems for AT&T customers' WorldN et dial-up services, and other
6 telecommunications equipment through which wire and electronic communications to and from
7 AT&T's dial-up and DSL Internet service subscribers, including emails, instant messages, Voice-
8 Over-Internet-Protocol ("VOIP") conversations and web browsing requests, are transmitted.
9 58. The communications transmitted through the WorldNet Internet room are carried as
10 light signals on fiber-optic cables that are connected to routers for AT&T's WorldNet Internct
11 service and are a part of AT&T's Common Backbone Internet network ("CBB"), which comprises
12 a number of major hub facilities such as the Folsom Street Facility that are connected by a mcsh 0
13 high-speed fiber optic cables and that are used for the transmission of interstate and foreign
14 communications.
15 59. The WorldNet Internet Room is designcd to route and transmit vast amounts of
16 Internet communications that are "peered" by AT&T between AT&T's CBB and the networks of
17 other carriers, such asConXion, Verio, XO, Genuity, Qwest, PAIX,Allegieance, Abovenet, Global
18 Crossing, C&W, UUNET, Level 3, Sprint,Telia, PSINet, and MAE-West. "Peering" is the process
19 whereby Internet providers interchange traffic destined for their respective customers, and for
20 customers of their customers.
21 60. Around January 2003, the NSA designed and implemented a program in
22 collaboration with AT&T to build a surveillance operation at AT&T's Folsom Street Facility, insi
23 a secret room known as the "SG3 Secure Room".
24 61. The SG3 Secure Room was built adjacent to the Folsom Street Facility's 4ESS
25 switch room.
26 62. An AT&T employee cleared and approved by the NSA was charged with setting up
27 and maintaining the equipment in the S03 Secure Room, and access to the room was likewise
28 controlled by those NSA-approved AT&T cmployees.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page12 of 56
63. The SG3 Secure Room contains sophisticated computer equipment, including a
2 device know as aNarus Semantic Traffic Analyzer (the Narus STA"), which is designed to analyze
3 large volumes of communications at high speed, and can be programmed to analyze the contents a d
4 traffic patterns of communications according to user-defined rules.
5 64. By early 2003, AT&T-under the instruction and supervision of the NSA-had
6 connected the fiber-optic cables used to transmit electronic and wire communications through the
7 WorldNet Internet Room to a "splitter cabinet" that intercepts a copy of all communications
8 transmitted through the WorldNet Internet Room and diverts copies of those communications to th
9 equipment in the SG3 Secure Room. (Hereafter, the technical means used to receive the diverted
10 communications will be referred to as the "Surveillance Configuration.")
11 65. The equipment in the SG3 Secure Room is in tum connected to a private high-spec
12 backbone network separate from the CBB (the "SG3 Network").
13 66. NSA analysts communicate instructions to the SG3 Secure Room's equipment,
14 including theNarus STA, using the SG3 Network, and the SG3 Secure Room's equipment transmit
15 communications based on those rules back to NSA personnel using the SG3 Network.
16 67. The NSA in cooperation with AT&T has installed and is operating a nationwide
17 network of Surveillance Configurations in AT&T facilities across the country, connected to the SG
18 Network.
19 68. This network of Surveillance Configurations includes surveillance devices installed
20 at AT&T facilities in Atlanta, GA; Bridgeton, MO; Los Angeles, CA; San Diego, CA; San Jose C
21 and/or Seattle, W A.
22 69. Those Surveillance Configurations divert all peered Internet traffic transiting those
23 facilities into SG3 Secure Rooms connected to the secure SG3 Network used by the NSA, and
24 information of interest is transmitted from the equipment in the SG3 Secure Rooms to the NSA
25 based on rules programmed by the NSA.
26 70. This network of Surveillance Configurations indiscriminately acquires domestic
27 communications as well as international and foreign communications.
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page13 of 56
1 71. This network of Surveillance Configurations involves considerably more locations
2 than would be required to capture the majority of international traffic.
3 72. This network of Surveillance Configurations acquires over half of AT&T's purely
4 domestic Internet traffic, representing almost all of the AT&T traffic to and from other providers,
5 and comprising approximately 10% of all purely domestic Internet communications in the United
6 States, including those of non-AT&T customers.
7 73. Through this network of Surveillance Configurations and/or by other means,
8 Defendants have acquired and continue to acquire the contents of domestic and international wire
9 and/or electronic communications sent and/or received by Plaintiffs and class members, as well as
lOnon-content dialing, routing, addressing and/or signaling infonnation pertaining to those
11 communications.
12 74. In addition to acquiring all of the Internet communications passing through a numbe
13 of key AT&T facilities, Defendants and AT&T acquire all or most long-distance domestic and
14 international phone calls to or from AT&T long-distance customers, including both the content of
15 those calls and dialing, routing, addressing and/or signaling infonnation pertaining to those calls,
16 by using a similarly nationwide network of surveillance devices attached to AT&T's long-distance
17 telephone switching facilities, and/or by other means.
18 75. The contents of communications to which Plaintiffs and class members were a pa
19 and dialing, routing, addressing, and/or signaling infonnation pertaining to those communications,
20 were and are acquired by Defendants in cooperation with AT&T by using the nationwide network 21
22
23
of Surveillance Configurations, and/or by other means.
76. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d
class members' communications contents and non-content infonnation is done without judicial, 24
statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and 25
in excess of statutory and constitutional authority. 26
77. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' 27 28 and class members' communications contents and non-content information is done without
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page14 of 56
probable cause or reasonable suspicion to believe that Plaintiffs or class members have
2 committed or are about to commit any crime or engage in any terrorist activity.
3 78. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d 4 class members' communications contents and non-content information is done without probable 5 cause or reasonable suspicion to believe thaPlaintiffs or class membersrre foreign powers or agents
6 thereof. 7 79. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d 8 class members' communications contents and non-content information is donewithout any reason
9 to believe that the information is relevant to an authorized criminal investigation or to an authorize
10 investigation to protect against international terrorism or clandestine intelligence activities. II
12
13
80. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d
class members' communications contents and non-content information was directly performed,
and/or aided, abetted, counseled, commanded, induced or procured, by Defendants. 14
15 81. On information and belief, Defendants will continue to directly acquire, and/or aid,
16 abet, counsel, command, induce or procure the above-described acquisition in cooperation with
17 AT&T, the communications contents and non-content information of Plaintiffs and class members.
18
19
20
THE NSA'S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM AT&T DATABASES
82. Defendants have since October 200 I continuously solicited and obtained the
21 disclosure of all information in AT&T's major databases of stored telephone and Internet records,
22 including up-to-the-minute updates to the databases that are disclosed in or ncar real-time.
23
24
25
26
83. Defendants have solicited and obtained from AT&T records concerning
communications to which Plaintiffs and class members were a party, and continue to do so.
84. In particular, Defendants have solicited and obtained the disclosure of information
managed by AT&T's "Daytona" database management technology, which includes records 27 28 concerning both telephone and Internet communications, and continues to do so.
Case3:08-cv-04373-JSW Document186-2 Filed03/l0/l4 Pagel5 of 56
85. Daytona is a database management technology designed to handle very large
2 databases and is used to manage "Hawkeye," AT&T's call detail record ("CDR") database, which
3 contains records of nearly every telephone communication carried over its domestic nctwork since 4
5 approximately 2001, records that include the originating and terminating telephone numbers and th
time and length for each call. 6
7 86. The Hawkeye CDR database contains records or other information pertaining to
8 Plaintiffs' and class members' use of AT&T's long distance telephone service and dial-up Internet
9 service.
10
II
12
13
87. As of September 2005, all of the CDR data managed by Daytona, whcn
uDcompressed, totaled more than 312 terabytes.
88. Daytona is also used to manage AT&T's huge network-sccurity database, known as
"Aurora," which has been used to store Internet traffic data since approximately 2003. The Aurora 14
15 database contains huge amounts of data acquired by firewalls, routersponeypots and other devices
16 on AT&T's global IP (Internet Protocol) network and other networks connected to AT&T's netwo
17 89. The Aurora database managed by Daytona contains records or other information
18 pertaining to Plaintiffs' and class members' use of AT&T's Internet services.
19
20
21
22
23
24
25
90. Since October 6,2001 or shortly thereafter, Defendants have continually solicited
and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications
records databases and/or other AT&T communications records, including records or other
information pertaining to Plaintiffs' and class members' use of AT&T's telephone and Internet
services.
91. The NSA and/or other Defendants maintain the communications records disclosed
by AT&T in their own database or databases of such records. 26
27 92. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
28 and class members' communications records, and its receipt of such disclosure, is done without
Case3:08-cv-04373-JSW Documentl86-2 Filed03/l0/l4 Pagel6 of 56
judicial, statutory, or other lawful authorization, in violation of statutory and constitutional
2 limitations, and in excess of statutory and constitutional authority.
3 93. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
4 and class members' communications records, and its receipt of such disclosure, is done without
5 probable cause or reasonable suspicion to believe that Plaintiffs' or class members have 6
7
8
committed or are about to commit any crime or engage in any terrorist activity.
94. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
and class members' communications records, and its receipt of such disclosure, is done without 9
probable cause or reasonable suspicion to believe that Plaintiffs' or class members are foreign 10
11
12
powers or agents thereof.
95. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
and class members' communications records, and its receipt of such disclosure, is donwithout any 13
14
15
16
17
reason to believe that the information is relevant to an authorized criminal investigation or to an
authorized investigation to protect against international terrorism or clandestine intelligence
activities.
96. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
18 and class members' communications records, and its receipt of such disclosure, is directly
19 performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.
20 97. On information and belief, Defendants will continue to directly solicit and obtain
21 AT&T's disclosure of its communications records, including records pertaining to Plaintiffs and
22 class members, and/or will continue to aid, abet, counsel, command, induce or procure that conduc .
CLASS ACTION ALLEGATIONS 23
24
25 98. Pursuant to Federal Rules of Civil Procedure, Rule 23(b)(2), Plaintiffs Hepting,
Hicks, Jewel,Knutzen, and Walton bring this action on behalf of themselves and a class ofsimilarl 26 27 situated persons defined as:
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page17 of 56
I All individuals in the United States that are current residential subscribers or customers of AT&T's telephone services or Internet services, or that were residential
2 telephone or Internet subscribers or customers at any time after September 200 I.
3 99. The class seeks certification of claims for declaratory, injunctive and other equitabl
4 relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory
5 and injunctive relief for violations of the First and Fourth Amendments. Members of the class 6
expressly and personally retain any and all damages claims they individually may possess arising 7
out of or relating to the acts, events, and transactions that fonn the basis of this action. The 8 9 individual damages claims of the class members are outside the scope of this class action.
10 100. Excluded from the class are the individual Defendants, all who have acted in active
II concert and participation with the individual Defendants, and the legal representatives, heirs,
12 successors, and assigns of the individual Defendants.
13
14
15
101. Also excluded from the class are any foreign powers, as defined by 50 U.S.C.
§ 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(I)(A), including
without limitation anyone who knowingly engages in sabotage or international terrorism, or 16 17 activities that are in preparation therefore.
18 102. This action is brought as a class action and may properly be so maintained pursuant
19 to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to
20 modify the class definition and the class period based on the results of discovery. 21
22 103. Numerosity of the Class: Members of the class are so numerous that their
individual joinder is impracticable. The precise numbers and addresses of members of the class ar 23
unknown to the Plaintiffs. Plaintiffs estimate that the class consists of millions of members. The 24 25 precise number of persons in the class and their identities and addresses may be ascertained from
26 Defendants' and AT&T's records.
27
28
Case3:08-cv-04373-JSW Document186-2 Filed03/l0/l4 Page18 of 56
104. Existence of Common Questions of Fact and Law: There is a well-defined
2 community of interest in the questions of law and fact involved affecting the members of the class.
3 These common legal and factual questions include: 4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
(a) Whether Defendants have violated the First and Fourth Amendment rights 0
class members, or are currently doing so;
(b) Whether Defendants have subjected class members to electronic surveillanc ,
or have disclosed or used information obtained by electronic surveillance of the class members, in
violation of 50 U.S.C. § 1809, or are currently doing so;
(c) Whether Defendants have intercepted, used or disclosed class members'
communications in violation of 18 U.S.C. § 2511, or are currently doing so;
(d) Whether Defendants have solicitcd and obtained the disclosure of the
contents of class members' communications in violation of 18 U.S.C. § 2703(a) or (b), or are
currently doing so;
(e) Whether Defendants have solicited or obtained the disclosure of non-content
records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or ar
currently doing so;
(t) Whether Defendants have violated the Administrative Procedures Act, 5
U.S.C. §§ 701 et seq., or are currently doing so;
(g) Whether the Defendants have violated the constitutional principle of
separation of powers, or arc currently doing so;
(h) Whether Plaintiffs and class members are entitled to injunctive, declaratory,
and other equitable relief against Defendants;
(i) Whether Plaintiffs and class members are entitled to an award of reasonable
attorneys' fees and costs of this suit.
105. Typicality: Plaintiffs' claims are typical of the claims of the members of the class
because Plaintiffs are or were subscribers to the Internet and telephone services of Defendants. 27
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page19 of 56
1 Plaintiffs and all members of the class have similarly suffered harm arising from Defendants'
2 violations of law, as alleged herein.
3
4
5
106. Adequacy: Plaintiffs are adequate representatives of the class because their interes
do not conflict with the interests of the members of the class they seek to represent. Plaintiffs have
retained counsel competent and experienced in complex class action litigation and Plaintiffs intend 6 7 to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect
8 the interests of the members of the class.
9 107. This suit may be maintained as a class action pursuant to Federal Rules of Civil
10 Procedure, Rule 23(b )(2) because Plaintiffs and the class seek declaratory and injunctive relief, an
11 all of the above factors of numerosity, common questions of fact and law, typicality and adequacy
12
13 are present. Moreover, Defendants have acted on grounds generally applicable to Plaintiffs and th
class as a whole, thereby making declaratory and/or injunctive relief proper. 14
15
16
COUNT I
Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief
17 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his
18 official and personal capacities), Mukasey (in his official and personal capacities), McConnell (in his official and personal capacities), and one or more of the Doe Defendants)
19
20 108. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
21 paragraphs of this complaint, as if set forth fully herein.
22 109. Plaintiffs and class members have a reasonable expectation of privacy in their
23 communications, contents of communications, and/or records pertaining to their communications
24 transmitted, collected, and/or stored by AT&T. 25
26 110. Defendants have directly performed, or aided, abetted, counseled, commanded,
induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, 27 28 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commissio
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page20 of 56
1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or usc of
2 Plaintiffs' and class members' communications, contents of communications, and records pertaini
3
4
5
to their communications transmitted, collected, and/or stored by AT&T, without judicial or other
lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and
constitutional limitations, and in excess of statutory and constitutional authority. 6
7 111. AT&T acted as the agent of Defendants in performing, participating in, enabling,
8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti ,
9 interception, disclosure, divulgence and/or use of Plaintiffs' and class members' communications,
10 contents of communications, and records pertaining to their communications transmitted, collected
11 and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or
12
13
14
individualized suspicion.
112. At all relevant times, Defendants committed, knew of and/or acquiesced in all of th
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class
16 members by obtaining judicial or other lawful authorization and by conforming their conduct to th
17 requirements of the Fourth Amendment.
18
19
20
21
113. By the acts alleged herein, Defendants have violated Plaintiffs' and class members'
reasonable expectations of privacy and denied Plaintiffs and class members their right to be free
from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constituti n
22 of the United States.
23 114. By the acts alleged herein, Defendants' conduct has proximately caused harm to
24 Plaintiffs and class members.
25 115. Defendants' conduct was done intentionally, with deliberate indifference, or with
26
27
28
reckless disregard of, Plaintiffs' and class members' constitutional rights.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page21 of 56
1 116. On information and belief, the Count I Defendants are now engaging in and will
2 continue to engage in the above-described violations of Plaintiffs' and class members' constitution I
3 rights, and are thereby irreparably hanning Plaintiffs and class members. Plaintiffs and class 4
5 members have no adequate remedy at law for the Count I Defendants' continuing unlawful conduc ,
and the Count I Defendants will continue to violate Plaintiffs' and class members' legal rights unle s 6 7 enjoined and restrained by this Court.
8 117. Plaintiffs seek that this Court declare that Defendants have violated their rights and
9 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all
10 those in active concert and participation with them from violating the Plaintiffs' and class member'
11 rights under the Fourth Amendment to the United States Constitution; and award such other and
12
13
14
15
further equitable relief as is proper.
COUNT II
Violation of Fourth Amendment-Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his 16 personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity), 17 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConneU (in his personal capacity), Negroponte (in his personal 18 capacity), and one or more of the Doe Defendants)
19 118. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
20 paragraphs of this complaint, as if set forth fully herein.
21
22
23
119. Plaintiffs have a reasonable expectation of privacy in their communications, content
of communications, andlor records pertaining to their communications transmitted, collected, andl r
24 stored by AT&T.
25 120. Defendants have directly performed, or aided, abetted, counseled, commanded,
26 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
27 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
28
Case3:08-cv-04373-JSW DocumenU86-2 Filed03/10/14 Page22 of 56
of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of
2 Plaintiffs' communications, contents of communications, and records pertaining to their
3 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful 4
5 authorization, probable cause, and/or individualized suspicion, in violation of statutory and
constitutional limitations, and in excess of statutory and constitutional authority. 6
7 121. AT&T acted as the agent of Defendants in performing, participating in, enabling,
8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti ,
9 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of
10 communications, and rccords pertaining to their communications transmitted, collcctcd, and/or
II
12
13
14
stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d
suspicion.
122. At all relevant times, Defendants committed, knew of and/or acquiesced in all ofth
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs by obtaining
16 judicial or other lawful authorization and conforming their conduct to the requirements of the Fou
17 Amendment
18 123. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable 19
expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and 20
seizures as guaranteed by the Fourth Amendment to the Constitution of the United States. 21
22 124. By the acts alleged herein, Defendants' conduct has proximately caused harm to
23 Plaintiffs.
24 125. Defendants' conduct was done intentionally, with deliberatc indifference, or with
25 reckless disregard of, Plaintiffs' constitutional rights.
26
27
28
126. Plaintiffs seek an award of their actual damages and punitive damages against the
Count II Defendants, and such other or further relief as is proper.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page23 of 56
COUNT III
2 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief
3
4
(Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and
5 McConneU (in his official and personal capacities), and one or more of the Doe Defendants)
6 127. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
7 paragraphs of this complaint, as ifset forth fully herein.
8
9
10
II
128. Plaintiffs and class members use AT&T's services to speak or receive speech
anonymously and to associate privately.
129. Defendants directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, 12 13 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the
14 above-described acts of acquisition, interception, disclosure, divulgence and/or use ofPlaintitTs' a
15 class members' communications, contents of communications, and records pertaining to their
16 communications without judicial or other lawful authorization, probable cause, and/or individualiz d
17 suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and
18
19
20
constitutional authority.
130. AT&T acted as the agent of Defendants in performing, participating in, enabling,
21 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti n,
22 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of
23 communications, and records pertaining to their communications transmitted, collected, and/or
24 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d 25
26
27
suspicion.
131. By the acts alleged herein, Defendants violated PlaintitTs' and class members' righ
28 to speak and to receive speech anonymously and associate privately under the First Amendment.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page24 of 56
132. By the acts alleged herein, Defendants' conduct proximately caused harm to
2 Plaintiffs and class members.
3
4
5
6
133. Defendants' conduct was done intentionally. with deliberate indifference, or with
reckless disregard of, Plaintiffs' and class members' constitutional rights.
134. On information and belief, the Count ill Defendants are now engaging in and will
7 continue to engage in the above-described violations of Plaintiffs' and class members' constitution I
8 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
9 members have no adequate remedy at law for the Count III Defendants' continuing unlawful
10 conduct, and the Count III Defendants will continue to violate Plaintiffs' and class members' legal
II rights unless enjoined and restrained by this Court.
12
13 135. Plaintiffs seck that this Court declare that Defendants have violated their rights and
the rights of the class; enjoin the Count ill Defendants, their agents, successors, and assigns. and al 14 15 those in active concert and participation with them from violating the Plaintiffs' and class member •
16 rights under the First Amendment to the United States Constitution; and award such other and
17 further equitable relief as is proper.
18 COUNT IV 19
20
21
22
23
24
Violation of First Amendment-Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
136. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
25 paragraphs of this complaint, as if set forth fully herein.
26 13 7. Plaintiffs use AT&T's services to speak or receive speech anonymously and to
27 associate privately.
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page25 of 56
138. Defendants directly perfonned, or aided, abetted, counseled, commanded, induced,
2 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
3 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the 4
5 above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs'
communications, contents of communications, and records pertaining to their communications 6 7 without judicial or other lawful authorization, probable cause, and/or individualized suspicion, in
8 violation of statutory and constitutional limitations, and in excess of statutory and constitutional
9 authority.
10 139. By the acts alleged herein, Defendants violated Plaintiffs' rights to speak and receiv
11 speech anonymously and associate privately under the First Amendment.
12 140. By the acts alleged herein, Defendants' conduct proximately caused hann to
13
14 Plaintiffs.
15 141. Defendants' conduct was done intentionally, with deliberate indifference, or with
16 reckless disregard of, Plaintiffs' constitutional rights.
17 142. Plaintiffs seek an award of their actual damages and punitive damages against the
18 Count IV Defendants, and for such other or further relief as is proper.
19
20
21
22
23
24
25
26
27
28
COUNT V
Violation of Foreign Intelligence Surveillance Act-Declaratory, Injunctive and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConneU (in his official
and personal capacities), and one or more of the Doe Defendants)
143. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin
paragraphs of this complaint. as if set forth fully herein.
144. In relevant part, 50 U.S.C. § 1809 provides that:
(a) Prohibited activities-A person is guilty of an offense if he intentionally-{l) engages in electronic surveillance under color of law
1
2
3
4
5
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page26 of 56
except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; or (2) discloses or uses infonnation obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
6 145. In relevant part 50 U.S.C. § 1801 provides that:
7
8
9
10
II
12
13
14
15
16
17
18
19
(f) "Electronic surveillance" means - (l) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents arc acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be pennissible under section 2511(2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire infonnation, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
20 146. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this
21
22
23
chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be tha?xclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
and the interception of domestic wire, oral, and electronic communications may be conducted." 24 25 (Emphasis added.)
26 147. 50 U.S.C. § 1812 further provides in relevant part that:
27
28
( a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which
I
2
3
4
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page27 of 56
electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic survcillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters I 19, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
5 (Emphasis added.)
6 148. Defendants intentionally acquired, or aided, abetted, counseled, commanded,
7 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
8 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission 9
10 of such acquisition, by means of a surveillance device, the contents of one or more wire
communications to or from Plaintiffs and class members or other information in which Plaintiffs 0 11 12 class members have a reasonable expectation of privacy, without the consent of any party thereto,
13 and such acquisition occurred in the United States.
14 149 . AT&T acted as the agent of Defendants in performing, participating in, enabling,
15 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti
16 of Plaintiffs' communications.
17
18 150. By the acts alleged herein, Defendants acting in excess of their statutory authority
and in violation of statutory limitations have intentionally engaged in, or aided, abetted, counseled, 19 20 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
21 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in
22 the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(0) under color oflaw,
23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 24
25
26
50 U.S.C. § 1809.
151. Additionally or in the alternative, by the acts alleged herein, Defendants acting in
27 excess of their statutory authority and in violation of statutory limitations have intentionally
28 disclosed or used information obtained under color of law by electronic surveillance, knowing or
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page28 of 56
1 having reason to know that the information was obtained through electronic surveillance not
2 authorized by statute, including information pertaining to Plaintiffs and class members, or aided,
3 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 4
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 5
or conspired in the commission of such acts. 6
7 152. Defendants did not notify Plaintiffs or class members of the above-described
8 electronic surveillance, disclosure, and/or use, nor did Plaintiffs or class members consent to such.
9 153. Plaintiffs and class members have been and are aggrieved by Defendants' electronic
10 surveillance, disclosure, and/or use of their wire communications.
11
12
13
154. On information and belief, the Count V Defendants are now engaging in and will
continue to engage in the above-described acts resulting in the electronic surveillance, disclosure,
and/or use of Plaintiffs' and class members' wire communications. acting in excess of the Count V 14
15 Defendants' statutory authority and in violation of statutory limitations, including 50 U.S.C. § 180
16 and 18 U.S.C. § 251 I (2)(f), and are thereby irreparably harming Plaintiffs and class members.
17 Plaintiffs and class members have no adequate remedy at law for the Count V Defendants'
18 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs' and
19 class members' legal rights unless enjoined and restrained by this Court.
20
21 155. Pursuant to Larson v. United Slates, 337 U.S. 682 (1949) and to 5 U.S.C. § 702,
22 Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of th
23 class; enjoin the Count V Defendants, their agents, successors, and assigns, and all those in active
24 concert and participation with them from violating the Plaintiffs' and class members' statutory
25 rights, including their rights under 50 U.S.C. §§ 1801 el seq.; and award such other and further
26 equitable relief as is proper. 27
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page29 of 56
1 COUNT VI
2 Violation of 50 U.S.C. § 1809, actionable under 50 U.S.C. § 1810-Damages
3 (Named Plaintiffs vs. Defendants United States, National Security Agency, Department of Justice, Alexander (in his official and personal capacities), Hayden (in his personal
4 capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey 5 (in his official and personal capacities), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his official and personal capacities), and Negroponte (in 6 his personal capacity), and one or more of the Doe Defendants)
7 156. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin
8 paragraphs of this complaint, as if set forth fully herein.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
157. In relevant part, 50 U.S.C. § 1809 provides that:
(a) Prohibited activities-A person is gUilty of an offense if he intentionally-(l) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
158. In relevant part 50 U.S.c. § 1801 provides that:
(f) "Electronic surveillance" means - (I) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be pennissible under section 2511 (2)(i) ofTitlc 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio
1
2
3
4
5
6
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page30 of 56
communication, undcr circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
159. 18 U.S.C. § 251 I (2)(t) further provides in relevant part that "procedures in this
chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thO?xclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
and the interception of domestic wire, oral, and electronic communications may be conducted." 7 8 (Emphasis added.)
9 160. 50 U.S.C. § 1812 further provides in relevant part that:
10
11
12
13
14
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
15 (Emphasis added.)
16
17
18
161. Defendants intentionally acquired, or aided, abetted, counseled, commanded,
induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commissio 19 20 of such acquisition, by means of a surveillance device, the contents of one or more wire
21 communications to or from Plaintiffs or othcr infonnation in which Plaintiffs have a reasonable
22 expectation of privacy, without the consent of any party thereto, and such acquisition occurred in
23 the United States.
24
25
26
27
28
162. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti
of Plaintiffs' communications.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page31 of 56
163. By the acts alleged herein, Defendants have intentionally engaged in, or aided,
2 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
3 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i , 4
5 or conspired in the commission of, electronic surveillance (as defined by 50 U.S.C. § 1801(1)) und r
color of law, not authorized by any statute, to which Plaintiffs were subjected in violation of 50 6 7 U.S.C. § 1809.
8 164. Additionally or in the alternative, by the acts alleged herein, Defendants have
9 intentionally disclosed or used information obtained under color of law by electronic surveillance,
10 knowing or having reason to know that the information was obtained through electronic surveillan e
11 not authorized by statute, including information pertaining to Plaintiffs, or aided, abetted, counsele ,
12
13 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in 14
15 the commission of such acts.
16 165. Defendants did not notify Plaintiffs ofthe above-described electronic surveillance,
17 disclosure, andlor usc, nor did Plaintiffs consent to such.
18
19
20
21
166. Plaintiffs have been and are aggrieved by Defendants' electronic surveillance,
disclosure, andlor use of their wire communications.
167. Pursuant to 50 U.S.C. § 1810, which provides a civil action for any person who has
been subjected to an electronic surveillance or about whom information obtained by electronic 22
surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs 23
seek from the Count VI Defendants for each Plaintiff their statutory damages or actual damages; 24
punitive damages as appropriate; and such other and further relief as is proper. 25
26
27
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page32 of 56
COUNT VII
2 Violation of 18 U.S.C. § 251l-Declaratory, Injunctive, and Other Equitable Relief
3 (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
4 and personal capacities), and one or more of the Doe Defendants)
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
168. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein.
169. In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as othelWise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
170. 18 U.S.C. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or cntity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
171. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this
23 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thCErclusive
24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted."
26 (Emphasis added.)
27
28 172. 50 U.S.C. § 1812 further provides in relevant part that:
1
2
3
4
5
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page33 of 56
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domcstic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
6 (Emphasis added.)
7 173. By the acts alleged herein, Defendants have intentionally and willfully intercepted,
8 endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs'
9 and class members' wire or electronic communications in violation of 18 U.S.C. § 2511(1)(a); an r
10
11
12
13
174. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
endeavored to disclose, to another person the contents of Plaintiffs' and class members' wire or
electronic communications, knowing or having reason to know that the information was obtained
through the interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)( ); 14
15 and/or
16 175. By the acts alleged herein, Defendants have intentionally and willfully used, or
17 endeavored to use, the contents of Plaintiffs' and class members' wire or electronic communicatio s,
18 while knowing or having reason to know that the information was obtained through the interceptio
19 of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(d).
20
21 176. By the acts alleged herein, Defendants have intentionally and willfully caused, or
aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 22 23 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
24 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to
25 Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a).
26 177. Defendants have committed these acts of interception, disclosure, divulgence and/o 27
use of Plaintiffs' and class members' communications directly or by aiding, abetting, counseling, 28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page34 of 56
commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing
2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or
3 conspiring in their commission. In doing so, Defendants have acted in excess of their statutory 4
5
6
authority and in violation of statutory limitations.
178. AT&T acted as the agent of Defendants in performing, participating in, enabling,
7 contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
8 divulgence and/or use of Plaintiffs' and class members' communications.
9 179. Defendants did not notify Plaintiffs or class members of the above-described
10 intentional interception, disclosure, divulgence andlor usc of their wire or electronic
11 communications, nor did Plaintiffs or class members consent to such.
12
13 180. Plaintiffs and class members have been and are aggrieved by Defendants' intention
and willful interception, disclosure, divulgence andlor use of their wire or electronic 14 15 communications.
16 181. On information and belief, the Count VII Defendants are now engaging in and will
17 continue to engage in the above-described acts resulting in the intentional and willful interception,
18 disclosure, divulgence andlor use of Plaintiffs' and class members' wire or electronic
19 communications, acting in excess of the Count VII Defendants' statutory authority and in violation
20 of statutory limitations, including 18 U .S.C. § 2511, and are thereby irreparably harming Plaintiffs
21 22 and class members. Plaintiffs and class members have no adequate remedy at law for the Count V I
23 Defendants' continuing unlawful conduct, and the Count VII Defendants will continue to violate
24 Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court.
25 182. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose
26
27
28
wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
in violation of 18 U.S.C. § 2511, to Larson v. United Siales, 337 U.S. 682 (1949), and to 5 U.S.C.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page35 of 56
§ 702, Plaintiffs and class members seek equitable and declaratory relief against the Count VII
2 Defendants.
3
4
5
183. Plaintiffs seek that this Court declare that Defendants have violated their rights and
the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and
all those in active concert and participation with them from violating the Plaintiffs' and class 6 7 members' statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and
8 further equitable relief as is proper.
9 COUNT VIII
10 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2520-Damages
11 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
12 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his 13 personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants) 14
15 184. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein. 16
17
18
19
20
21
22
23
24
25
185. In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
26 186. 18 U.S.C. § 2511 further provides that:
27
28
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to
2
3
4
5
6
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page36 of 56
such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
187. 18 U.S.C. § 251 I (2)(f) further provides in relevant part that "procedures in this
chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be th~xclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
7 and the interception of domestic wire, oral, and electronic communications may be conducted."
8 (Emphasis added.)
9 188. 50 U.S.C. § 1812 further provides in relevant part that:
10
11
12
13
14
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
15 (Emphasis added.)
16
17
18
189. By the acts alleged herein, Defendants have intentionally and willfully intercepted,
endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs
wire or electronic communications in violation of 18 U.S.C. § 251 I (1)(a); and/or 19
20 190. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
21 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic
22 communications, knowing or having reason to know that the infonnation was obtained through the
23 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or
24
25
26
191. By the acts alleged herein, Defendants have intentionally and willfully used, or
endeavored to use, the contents of Plaintiffs' wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or 27 28 electronic communications in violation of 18 U.S.C. § 2511 (1 )(d).
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page37 of 56
1 192. By the acts alleged herein, Defendants have intentionally and willfully caused. or
2 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
3 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to 4
5 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to
Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511 (3)(a). 6
7 193. Defendants have committed these acts of interception, disclosure, divulgence andlo
8 use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci ,
9 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
10 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their
II commission.
12
17 disclosure, divulgence andlor use of their wire or electronic communications, nor did Plaintiffs or
18 class members consent to such. 19
20
21
22
196. Plaintiffs have been and are aggrieved by Defendants' intentional and willful
interception, disclosure, divulgence andlor use of their wire or electronic communications.
197. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose
23 wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
24 in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VIII Defendants for each Plaintiff
25 their statutory damages or actual damages; punitive damages as appropriate; and such other and
26
27
28
further relief as is proper.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page38 of 56
COUNT IX
2 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.C. § 2712-Damages Against The United States
3 (Named Plaintiffs vs. Defendants United States, Department of Justice, and National
4 Security Agency)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
198. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein.
199. In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
200. 18 U.S.C. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally diwlge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
201. 18 U.S.c. § 251 1 (2)(f) further provides in relevant part that "procedures in this
23 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thQ?xc/usive
24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted."
26 (Emphasis added.)
27
28 202. 50 U.S.C. § 1812 further provides in relevant part that:
1
2
3
4
5
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page39 of 56
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the intcrception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
6 (Emphasis added.)
7 203. By the acts alleged herein, Defendants have intentionally and willfully intercepted,
8
9
10
11
endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs
wire or electronic communications in violation of 18 U .S.C. § 2511 (1 )(a); and/or
204. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
12 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic
13 communications, knowing or having reason to know that the information was obtained through the
14 interception of wire or electronic communications in violation of 18 U.S.C. § 2511 (1)( c); and/or
15
16
17
18
205. By the acts alleged herein, Defendants have intentionally and willfully used, or
endeavored to use, the contents of Plaintiffs' wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or
electronic communications in violation of 18 U.S.C. § 2511(1)(d). 19 20 206. By the acts alleged herein, Defendants have intentionally and willfully caused, or
21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
22 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
23 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to 24
25
26
Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511 (3)(a).
207. Defendants have committed these acts of interception, disclosure, divulgence and/o
27 use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci ,
28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page40 of 56
enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their
2 commission.
3
4
5
208. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
divulgence and/or use of Plaintiffs' communications. 6
7 209. Defendants did not notify Plaintiffs of the above-described intentional interception,
8 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or
9 class members consent to such.
10
11
12
13
210. Plaintiffs have been and are aggrieved by Defendants' intentional and willful
interception, disclosure, divulgence and/or use of their wire or electronic communications.
211. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
agencies and departments for any person whose wire or electronic communications have been 14
15 intercepted, disclosed, divulged or intentionally used in willful violation of 18 U .S.C. § 2511.
16 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuan
17 to 18 U.S.C. § 2712, Plaintiffs seek from the Count IX Defendants for each Plaintiff their statutory
18 damages or actual damages, and such other and further relief as is proper.
19
20 COUNT X
Violation of 18 U.S.C. § 2703(a) & (b)-Declaratory, Injunctive, and Other Equitable 21 Relief
22 (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
23 and personal capacities), and one or more of the Doe Defendants)
24
25
26
27
28
212. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein.
213. In relevant part, 18 U.S.C. § 2703 provides that:
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page41 of 56
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the. contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (8) with prior notice from the governmental entity to the subscriber or customer ifthe governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (I) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (8) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
214. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 26 27 willfully causcd, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
28 or conspired in soliciting and obtaining from AT&T, the disclosure to Defendants of the contents
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page42 of 56
I of Plaintiffs' and class members' communications while in electronic storage by an AT&T electro ic
2 communication service, and/or while carried or maintained by an AT&T remote computing servic
3 in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of 4
5
6
their statutory authority and in violation of statutory limitations.
215. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
7 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
8 and class members' communications.
9 216. Defendants did not notify Plaintiffs or class members of the disclosure of their
10 communications, nor did Plaintiffs or class members consent to such.
11
12
13
14
217. Plaintiffs and class members have been and are aggrieved by Defendants' above-
described soliciting and obtaining of disclosure of the contents of communications.
218. On information and belief, the Count X Defendants are now engaging in and will
15 continue to engage in the above-described soliciting and obtaining of disclosure of the contents of
16 class members' communications while in electronic storage by AT&T's electronic communication
17 service(s), and/or while carried or maintained by AT&T's remote computing service(s), acting in
18 excess of the Count X Defendants' statutory authority and in violation of statutory limitations, 19
including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably hanning Plaintiffs and class 20
21 members. Plaintiffs and class members have no adequate remedy at law for the Count X
22 Defendants' continuing unlawful conduct, and the Count X Defendants will continue to violate
23 Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court.
24 219. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
25 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682
26 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief 27
28 against the Count X Defendants.
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page43 of 56
1 220. Plaintiffs seek that this Court declare that Defendants have violated their rights and
2 the rights of the class; enjoin the Count X Defendants, their agents, successors, and assigns, and all
3 those in active concert and participation with them from violating the Plaintiffs' and class membe • 4
5 statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and further
equitable relief as is proper. 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNT XI
Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2707-Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
221. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein.
222. In relevant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(1) A governmental entity may require a provider of rcmote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or
1
2
3
4
5
6
7
8
9
10
11
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page44 of 56
(8) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (8) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
12 223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
15 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the conten
16
17 of Plaintiffs' communications while in electronic storage by an AT&T electronic communication
service, and/or while carried or maintained by an AT&T remote computing service, in violation of 18
19 18 U.S.C. §§ 2703(a) and/or (b).
20 224. AT&T acted as the agent of Defendants in performing, participating in, enabling,
21 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
22 communications.
23
24
25
26
225. Defendants did not notify Plaintiffs of the disclosure of their communications, nor
did Plaintiffs consent to such.
226. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an
27 obtaining of disclosure of the contents of communications.
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page45 of 56
227. Pursuant to 18 U .S.C. § 2707, which provides a civil action for any person aggrieve
2 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI
3 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as 4
5
6
7
8
9
appropriate; and such other and further relief as may be proper.
COUNT XII
Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2712-Damages Against The United States
(Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency)
10 228. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
11 paragraphs of this complaint, as if set forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
229. In relevant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents ofa wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
CA) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (8) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
2
3
4
5
6
7
8
9
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page46 of 56
(ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (I) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (8) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
10 230. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
II abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 12
13 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
or conspired in the soliciting and obtaining from AT&T the disclosure to the NSA of the contents 14 15 of Plaintiffs' communications while in electronic storage by an AT&T electronic communication
16 service, and/or while carried or maintained by an AT&T remote computing service, in violation of
17 18 U.S.C. §§ 2703(a) and/or (b).
18
19
20
21
22
231. AT&T acted as the agent of Defendants in performing, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
communications.
232. Defendants did not notify Plaintiffs of the disclosure of their communications, nor
23 did Plaintiffs consent to such.
24 233. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an
25 obtaining of disclosure of the contents of communications.
26 234. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
27 agencies and departments for any person whose communications have been disclosed in willful
28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page47 of 56
1 violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim presentment proceduf
2 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants
3 for each Plaintiff their statutory damages or actual damages, and such other and further relief as is 4
5
6
7
proper.
COUNT XIII
Violation of 18 U.S.C. § 2703(c)-Declaratory, Injunctive, and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal 8 capacities), Mukasey (in his official and personal capacities), and McConnell (in his official 9 and personal capacities), and one or more ofthe Doe Defendants)
10 235. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
II paragraphs of this complaint, as if set forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
236. In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(I) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (8) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remOle computing service shall disclose to a governmental entity the-
(A) name; (8) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized;
1
2
3
4
5
6
7
8
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page48 of 56
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (I). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to .a subscriber or customer.
237. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
9 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
10 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
11 other information pertaining to Plaintiffs' and class members' use of electronic communication
12 services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S.
13 § 2703(c). In doing so, Defendants have acted in excess of their statutory authority and in violatio
14 of statutory limitations. 15
16
17
18
19
238. AT&T acted as the agent of Defendants in performing, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
and class members' records or other information.
239. Defendants did not notify Plaintiffs or class members of the disclosure of these
20 records or other information pertaining to them and their use of AT&T services, nor did Plaintiffs
21 or class members consent to such.
22
23
24
25
26
240. Plaintiffs and class members have been and arc aggrieved by Defendants' abovc-
described acts of soliciting and obtaining disclosure by AT&T of records or other information
pertaining to Plaintiffs and class members.
241. On information and belief, the Count XIIJ Defendants are now engaging in and will
27 continue to engage in the above-described soliciting and obtaining disclosure by AT&T of records
28 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIJI
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page49 of 56
I Defendants' statutory authority and in violation of statutory limitations, including 18 U.S.C. §
2 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
3 members have no adequate remedy at law for the Count XIII Defendants' continuing unlawful 4
5 conduct, and the Count XIII Defendants will continue to violate Plaintiffs' and class members' leg I
rights unless enjoined and restrained by this Court. 6
7 242. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
8 by knowing or intentional violation of 18 U.S.C. § 2703, toLarson v. United States, 337 U.S. 682
9 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief
10 against the Count XIII Defendants.
II
12
13
243. Plaintiffs seek that the Court declare that Defendants have violated their rights and
the rights ofthe class; enjoin the Count xrn Defendants, their agents, successors, and assigns, and
all those in active concert and participation with them from violating the Plaintiffs' and class 14 15 members' statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and
16 further equitable relief as is proper.
17 COUNT XIV
18 Violation of18 U.S.c. § 2703(c), actionable under 18 U.S.C. § 2707-Damages
19 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his 20 personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal 21
22
23
capacity), and one or more of the Doe Defendants)
244. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
24 paragraphs of this complaint, as ifset forth fully herein.
25 245. In relevant part, 18 U.S.C. § 2703(c) provides that:
26
27
28
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 PageSO of 56
other information pertaining to a subscriber to or customer of such seIVice (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosurc; (D) submits a fonnal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is dermed in section 2325 of this title); or (E) seeks information under paragraph (2).
(2) A provider of electronic communication seIVice or remote computing seIVice shall disclose to a governmental entity the- .
(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of seIVice (including start date) and typcs of seIVicc utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such seIVice (including any credit card or bank account number),
of a subscriber to or customer of such seIVice when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
20 246. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
21 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
22 willfully caused. participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
23 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
24 other information pertaining to Plaintiffs' use of electronic communication seIVices and/or remote
25 computing seIVices offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
26
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Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page51 of 56
1 247. AT&T acted as the agent of Defendants in performing, participating in, enabling,
2 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
3 records or other information. 4
248. Defendants did not notify Plaintiffs of the disclosure of these records or other 5
information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. 6
7 249. Plaintiffs have been and are aggrieved by Defendants' above-described acts of
8 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiff: .
9 250. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
10 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XIV 11 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as 12
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appropriate; and such other and further relief as may be proper.
COUNT XV
Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2712-Damages Against The United States
(Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency)
18 251. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
19 paragraphs of this complaint, as if set forth fully herei!.t.
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252. In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (8) obtains a court order for such disclosure under subsection (d) of this section;
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Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page52 of 56
(C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business ofa subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defmed in section 2325 of this title); or (E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-
(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
253. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
other information pertaining to Plaintiffs' use of electronic communication services and/or remote
computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
254. AT&T aeted as the agent of Defendants in performing, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
records or other information.
255. Defendants did not notify Plaintiffs of the disclosure of these records or other
26 information pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.
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Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page53 of 56
256. Plaintiffs have been and are aggrieved by Defendants' above-described acts of
2 soliciting and obtaining disclosure by AT&T of records or other information pertaining to Plaintiffi.
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257. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
agencies and departments for any person aggrieved by willful violation of 18 U.S.C. § 2703.
Plaintiffs have complied fully with the claim presentment procedure of 18 U .S.C. § 2712. Pursuan 6 7 to 18 U.S.C. § 2712, Plaintiffs seek from the Count XV Defendants for each Plaintiff their statuto
8 damages or actual damages and such other and further relief as is proper.
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COUNT XVI
Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory, Injunctive, and Other Equitable Relief
12 (Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Alexander (in his official and personal capacities), Mukasey (in his official
13 and personal capacities), and McConnell (in his official and personal capacities), and one
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or more of the Doe Defendants)
258. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein. 16
17 259. The Program violates the Administrative Procedures Act,S U.S.C. § 701 et seq.,
18 because Defendants' actions under the Program exceed statutory authority and limitations imposed
19 by Congress through FISA, and through Chapters 119, 121 and 206 of Title 18 of the U.S. Code ( e
20 Wiretap Act, the Stored Communications Act, and the Pen Register Statute, respectively) and in 21
22 violation of statutory rights under those la~are not otherwise in accordance with law; are contrary
to constitutional rights, including the Fourth Amendment. First Amendment. and separation of 23 24 powers principles; and are taken without observance of procedures required by law.
25 260. Plaintiffs and class members are aggrieved by these violations because. as describe
26 previously in this Complaint. Defendants' actions under the Program has resulted in the interceptio •
27 acquisition. disclosure. divulgence andlor use of the contents of their wire and electronic 28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page54 of 56
1 communications, communications records, and other infonnation in violation of their constitutiona
2 and statutory rights.
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261. Plaintiffs seek nonmonetary relief against the Count XVI Defendants, including a
declaration that Defendants have violated their rights and the rights of the class; an injunction
enjoining the Count XVI Defendants, their agents, successors, and assigns, and all those in active 6 7 concert and participation with them from violating the Plaintiffs' and class members' rights; and
8 such other and further nonmonetary relief as is proper.
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COUNT XVII
Violation of Separation of Powers - Declaratory, Injunctive, and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Bush (in his official and personal capacities), Alexander (in his official
and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official and personal capacities), and one or more of the Doe Defendants)
14 262. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
15 paragraphs of this complaint, as ifset forth fully herein.
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263. The Program violates the principles of separation of powers because it was
authorized by the Executive in excess of the Executive's authority under Article II of the United
States Constitution, in excess of statutory authority granted the Executive under FISA and under
Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored 20
Communications Act, and the Pen Register Statute, respectively) and exceeds the statutory limits 21
imposed on the Executive by Congress. 22
23 264. Plaintiffs and class members are aggrieved by these violations because, as described
24 previously in this Complaint. Defendants' actions under the Program has resulted in the interceptio ,
25 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic
26 communications, communications records, and other infonnation in violation of their constitutiona
27 and statutory rights. 28
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page55 of 56
1 265. Plaintiffs seek nonmonetary relief against the Count XVII Defendants, including a
2 declaration that Defendants have violated their rights and the rights of the class; an injunction
3 enjoining the Count XVII Defendants, their agents, successors, and assigns, and all those in active
4
5 concert and participation with them from violating the Plaintiffs' and class members' rights; and fo
such other and further nonmonetary relief as is proper. 6
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
A. Declare that the Program as alleged herein violates without limitation Plaintiffs' an
10 class members' rights under the First and Fourth Amendments to the Constitution; their statutory
11 rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, and the
12 Administrative Procedures Act; and their rights under the constitutional principle of Separation of
13 Powers.
14 B. Award Plaintiffs and the class equitable relief, including without limitation, a
15 preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United
16 States Constitution prohibiting Defendants' continued use of the Program, and a preliminary and
17 permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to
18 Plaintiffs and the class an inventory of their communications, records, or other information that wa
19 seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of
20 those communications, records, or other information within the possession, custody, or control of
21 Defendants.
22 C. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitte
23 by law and according to proof.
24 D. Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent
25 permitted by law.
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G. Grant such other and further relief as the Court deems just and proper.
II
II
Case3:08-cv-04373-JSW Document186-2 Filed03/10/14 Page56 of 56
1 JURY DEMAND
2 Plaintiffs hereby requestajury trial for all issues triable by jury including, but not limited to,
3 those issues and claims set forth in any amended complaint or consolidated action.
4 DATED: September122008 ~~/~ ~ 5
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ELECfRONIC FRONTIER FOUNDATION CINDY COHN (1455997) LEE TlEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax)
RICHARD R. WIEBE (121156) LA W OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382
THOMAS E. MOORE III (115107) THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: (650) 798-5352 Facsimile: (650) 798-5001
Attorneys for Plaintiffs
COMPLAINT -54-
Case3:08-cv-04373-JSW DocumenU86-3 Filed03/l0/l4 Pagel of 29
Exhibit B
Exhibit B
CINDY COHN (SBN 145997) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
3 MATIHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060)
4 DA VID GREENE (SBN 160 I 07) JAMES S. TYRE (SBN 083117)
5 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street
6 San Francisco, CA 94109
7 Tel.: (415) 436-9333; Fax: (415) 436-9993
THOMAS E. MOORE III (SBN 115107) 8 [email protected]
ROYSE LAW FIRM, PC 9 1717 Embarcadero Road
Palo Alto, CA 94303 10 Tel.: 650-813-9700; Fax: 650-813-9777
11 Attorneys for Plaintiffs
RACHAEL E. MENY (SBN 178514) [email protected] MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) [email protected] LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANT ARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
FIRST UNITARIAN CHURCH OF LOS ) ANGELES; ACORN ACTIVE MEDIA; BILL OF ) RIGHTS DEFENSE COMMITTEE; CALGUNS ) FOUNDATION, INC.; CALIFORNIA ) ASSOCIATION OF FEDERAL FIREARMS ) LICENSEES, INC.; CHARITY AND SECURITY) NETWORK; COUNCIL ON AMERICAN ) ISLAMIC RELATIONS-CALIFORNIA; ) COUNCIL ON AMERICAN ISLAMIC ) RELATIONS-OHIO; COUNCIL ON ) AMERICAN ISLAMIC RELATIONS- ) FOUNDATION, INC.; FRANKLIN ARMORY; ) FREE PRESS; FREE SOFTWARE ) FOUNDATION; GREENPEACE, INC.; HUMAN ) RIGHTS WATCH; MEDIA ALLIANCE; ) NATIONAL LA WYERS GUILD; NATIONAL ) ORGANIZATION FOR THE REFORM OF ) MARIJUANA LAWS, CALIFORNIA CHAPTER;) PATIENT PRIVACY RIGHTS; PEOPLE FOR ) THE AMERICAN WAY; PUBLIC ) KNOWLEDGE; SHALOM CENTER; ) STUDENTS FOR SENSIBLE DRUG POLICY; ) TECHFREEDOM; and UNITARIAN ) UNIVERSALIST SERVICE COMMITTEE, )
) ~laiDtiff!:i. )
Case No: 3:13-cv-03287 JSW
FIRST AMENDED COMPLAINT FOR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DECLARATORY AND INJUNCTIVE RELIEF
Hon. Jeffrey S. White Courtroom II - 19th Floor
DEMAND FOR JURY TRIAL
FIRST AMENDED COMPLAINT
v. ) )
2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and )
3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and )
4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant )
5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; )
6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official )
7 and individual capacities; ROBERT S. ) MUELLER, fonner Director of the FEDERAL )
8 BUREAU OF INVESTIGATION, in his individual) capacity; JAMES R. CLAPPER, Director of )
9 National Intelligence, in his official and individual ) capacities, and DOES 1-100, )
10 ) Defendants. )
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CASE NO. 13-cv-3287 JSW
v. ) )
2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and )
3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and )
4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant )
5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; )
6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official )
7 and individual capacities; ROBERT S. ) MUELLER, former Director of the FEDERAL )
8 BUREAU OF INVESTIGATION, in his individual) capacity; JAMES R. CLAPPER, Director of )
9 National Intelligence, in his official and individual ) capacities, and DOES 1-100, )
10 ) Defendants. )
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CASE NO. 13-cv-3287 JSW
I 1. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalf of
2 their members and staff. Plaintiffs allege as follows:
3
4 2.
PRELIMINARY STATEMENT
Plaintiffs, as described more particularly below, are associations, as well as the
5 members and staffs of associations, who use the telephone to engage in private communications
6 supportive of their associations and activities, including engaging in spcech, assembly, petition for
7 the redress of grievances, and the exercise of religion.
8 3. This lawsuit challenges an illegal and unconstitutional program of dragnet electronic
9 surveillance, specifically the bulk acquisition, seizure, collection, storage, retention, and searching of
10 telephone communications information (the "Associational Tracking Program") conducted by the
II National Security Agency (NSA) and the other defendants (collectively, "Defendants").
12 4. The Associational Tracking Program is vast. It collects telephone communications
13 information for all telephone calls transiting the networks of all major American telecommunication
14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of
15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861.
16 5. The communications information that Defendants collect in the Associational
17 Tracking Program is retained and stored by Defendants in one or more databases. The Program
18 collects information concerning all calls wholly within the United States, including local telephone
19 calls, as well as all calls between the United States and abroad, regardless of a connection to
20 international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing. This
21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored
22 the telephone communications information of millions of ordinary Americans as part of the
23 Associational Tracking Program.
24 6. Defendants search and analyze the Associational Tracking Program's database(s) for
25 various purposes, including but not limited to, obtaining the communications history of particular
26 phone numbers, which, when aggregated, reveals those numbers' contacts and associations over
27 time.
28 I FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 7. Defendants' collection oftelephone communications infonnation includes, but is not
2 limited to, records indicating who each customer communicates with, at what time, for how long and
3 with what frequency communications occur. This communications infonnation discloses the
4 expressive and private associational connections among individuals and groups, including Plaintiffs
5 and their members and staff.
6 8. The Associational Tracking Program has been going on in various forms since October
7 2001.
8 9. The bulk collection of tclephone communications information without a valid,
9 particularized warrant supported by probable cause violates the First, Fourth, and Fifth Amendmcnts,
10 as well as statutory prohibitions and limitations on electronic surveillance.
11 10. Defendants' searches of the Associational Tracking Program database(s) without a
12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth
13 Amendments.
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11.
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Plaintiffs' records are searched even if they are not targets of the search.
Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their
16 members who are current subscribers to Verizon and other telephone services. Using the
17 Associational Tracking Program, Defendants seize, collect, acquire, retain, and search the records of
18 the telephone communications of Plaintiffs, their members and staff, and others seeking to associate
19 and communicate with them.
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21 13.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over the federal claims pursuant to 28 V.S.C.
22 § 1331, 5 U.S.C. § 702, and the Constitution.
23 14. Plaintiffs are informed, believe, and thereon allege that Defendants have sufficient
24 contacts with this district generally and, in particular, with the events herein alleged, that Defendants
25 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
26 venue is proper in this judicial district pursuant to 28 V.S.C. § 1391.
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15. Plaintiffs are infonned, believe, and thereon allege that a substantial part of the events
2 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents of
2 Defendants may be found in this district.
3 16. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
4 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
5 omissions giving rise to this lawsuit occurred in this district and division.
6 PARTIES
7 17. Plaintiff First Unitarian Church of Los Angeles (First Unitarian) was founded in 1877
8 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of
9 slavery and women's suffrage. First Unitarian is located in Los Angeles, California. Throughout its
10 history members of First Unitarian defined their religious goals in terms of justicc, equality, and
II liberty for all persons. During the middle decades of the 20th century, First Unitarian provided aid to
12 Japanese-Americans displaced by internment camps, defended free speech against anti-communist
13 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to
14 Central American refugees and, in recent decades, First Unitarian opened its building as a
15 community center for the economically-depressed and ethnically-diverse neighborhood of
16 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and
17 controversial ideas and are proud of their contribution to moving the world closer to justice for all.
18 First Unitarian brings this action on behalf of itself and its adversely affected members and staff.
19 18. Plaintiff Acorn Active Media is an outlet for technically skilled members to build
20 technical resources for groups, non-profits, and individuals who otherwise do not have the capacity
21 or would not be able to afford these services. Since Acorn's inception in January 2004, it has
22 engaged in website design, web application development, general technical consulting and hardwarc
23 support, and organizational database development for a diverse array of groups, individuals, and
24 organizations from around the globe. Acorn members have supported democracy advocates and
25 independent media outlets worldwide, often working directly with communities laboring under
26 hostile and oppressive regimes. Plaintiff Acorn brings this action on behalf ofitself and its adversely
27 affected volunteers and members.
28 3 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
19. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy
2 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically,
3 ethnically, geographically, and generationally diverse grassroots movement focused on educating
4 Americans about the erosion offundamental freedoms; increasing civic participation; and converting
5 concern and outrage into political action. BORDC brings this action on behalf of itself and its
6 adversely affected staff.
7 20. Plaintiff Calguns Foundation, Inc. (CGF) is a non-profit, membership organization
8 based in San Carlos, California. CGF works to support the California fireanns community by
9 promoting education for all stakeholders about California and federal firearm laws, rights, and
10 privileges, and defending and protecting the civil rights of California gun owners. In particular, CGF
II operates a hotline for those with legal questions about gun rights in California. PlaintiffCGF brings
12 this action on behalf of itself and on behalf of its adversely affected members and staff.
13 21. Plaintiff California Association of Federal Firearms Licensees, Inc. (CAL-FFL) is a
14 non-profit, industry association of, by, and for fireanns manufacturers, dealers, collectors, training
15 professionals, shooting ranges, and others, advancing the interests of its members and the general
16 public through strategic litigation, legislative efforts, and education. CAL-FFL expends financial and
17 other resources in both litigation and non-litigation projects to protect the interests of its members
18 and the public at largc. CAL-FFL brings this action on behalf of itself and its adversely affected
19 members and staff.
20 22. Plaintiff Charity and Security Network's mission is to protect civil society's ability to
21 carry out peacebuilding projects, humanitarian aid, and developmcnt work effectively and in a
22 manner consistent with human rights principles and democratic valucs. To accomplish this, thc
23 Network focuses on: coordinating advocacy by bringing together stakeholders from across the
24 nonprofit sector with policymakers to support needed changes in U.S. national security rules; and
25 raising awareness, dispelling myths and promoting awareness of the positive contribution civil
26 society makes to human security. CSN brings this action on behalf ofitself and its adversely affected
27 membership and staff.
28 4 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 23. Plaintiffs Council on American Islamic Relations-California (CAIR-CA), Council on
2 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations-
3 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio,
4 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F's missions are to
5 enhance the understanding ofIslam, encourage dialogue, protect civil liberties, empower American
6 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR-
7 OHIO, and CAlR-F bring this action on behalf of themselves and their adversely affected staffs.
8 24. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and
9 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Armory
10 specializes in engineering and building products for restrictive firearms markets, such as California.
11 Franklin Armory is a member ofCAL-FFL. Franklin Armory brings this suit on its own behalf.
12 25. Plaintiff Free Press is anon-profit, advocacy organization based in Washington, D.C.
13 Free Press's mission is to build a nationwide movement to change media and technology policies,
14 promote the public interest, and strengthen democracy by advocating for universal and affordable
15 Internet access, diverse media ownership, vibrant public media, and quality journalism. Free Press
16 brings this action on behalf of itself and its adversely affected members and staff.
17 26. Plaintiff the Free Software Foundation (FSF) is a non-profit, membership organization
18 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and
19 provides an umbrella of legal and technical infrastructure for collaborative software development
20 internationally. FSF brings this action on behalf of itself and its adversely affected members and
21. staff.
22 27. Plaintiff Greenpeaee, Inc. (Greenpeace) is a non-profit, membership organization
23 headquartered in Washington, D.C. Through a domestic and international network of offices and
24 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose
25 global environmental problems and to promote solutions that are essential to a green and peaceful
26 future. Greenpeaee brings this action on behalf ofitself and its adversely affected members and staff.
27 28. Plaintiff Human Rights Watch (HRW) is a non-profit, advocacy organization, based in
28 5 FIRST AMENDED COMPLAINT
CASE NO. ·J3-cv-3287 JSW
New York, New York. Through its domestic and international network of offices and staff, HRW
2 challenges governments and those in power to end abusive pra~tices and respect international human
3 rights law by enlisting the public and the international community to support the cause of human
4 rights for all. HRW brings this action on behalf of itself and its adversely affected staff.
5 29. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland,
6 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit
7 organizations, and social justice activists to make media accessible, accountable, decentralized,
8 representative of society's diversity, and free from covert or overt government control and corporate
9 dominance. Media Alliance brings this action on behalf of itself and its adversely affected members
10 and staff.
11 30. Plaintiff National Lawyers Guild, Inc. is a non-profit corporation formed in 1937 as
12 the nation's first racially integrated voluntary bar association. For over seven decades the Guild has
13 represented thousands of Americans critical of government policies, from antiwar, environmental
14 and animal rights activists, to Occupy Wall Street protesters, to individuals accused of computer-
15 related offenses. From 1940-1975 the FBI conducted a campaign of surveillance, investigation and
16 disruption against the Guild and its members, trying unsuccessfully to label it a subversive
17 organization. The NLG brings this action on behalf of itself and its adversely affected membership
18 and staff.
19 31. Plaintiff National Organization for the Reform of Marijuana Laws, California Chapter
20 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley,
21 California. NORML, California Chapter is dedicated to reforming California's marijuana laws and
22 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter
23 brings this action on behalf of itself and its adversely affected members and staff.
24 32. Plaintiff Patient Privacy Rights (PPR) is a bipartisan, non-profit organization with
25 12,000 members in all 50 states. It works to give patients control over their own sensitive health
26 information in electronic systems, with the goal of empowering privacy and choices that protect jobs
27 and opportunities and ensure trust in the patient-physician relationship. The lack of privacy of health
28 6 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 infonnation causes millions of individuals every year to refuse or delay needed medical treatment or
2 hide infonnation, putting their health at risk. PPR brings this action on behalf of itself and its
3 adversely affected members and volunteers.
4 33. Plaintiff People for the American Way (PF A W) is a non-profit, membership
5 organization based in Washington, D.C. With over 595,000 members, PF A W's primary function is
6 the education of its members, supporters, and the general public as to important issues that impact
7 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties,
8 government secrecy, improper government censorship, and First Amendment freedoms. PFAW
9 brings this action on behalf of itself and its adversely affected members and staff.
10 34. Plaintiff Public Knowledge is a non-profit, advocacy organization based in
II Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the
12 public's access to knowledge, promoting creativity through the balanced application of copyright
13 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully.
14 Public Knowledge brings this action on behalf of itself and its adversely affected staff.
15 35. Plaintiff the Shalom Center seeks to be a prophetic voice in Jewish, multireligious, and
16 American life. It connects the experience and wisdom of the generations forged in the social,
17 political, and spiritual upheavals of the last half-century with the emerging generation of activists,
18 addressing with special concern the planetary climate crisis and the power configurations behind that
19 crisis. The Shalom Center brings this action on behalf of itself and its adversely affected membership
20 and staff.
21 36. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership
22 organization based in Washington, D.C. With over 3,000 members, SSDP is an international,
23 grassroots network of students who are concerned about the impact drug abuse has on our
24 communities, but who also know that the War on Drugs is failing our generation and our society.
25 SSD P creates change by bringing young people together and creating safe spaces for students of all
26 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP
27 brings this action on behalf of itself and its adversely affected membership and staff.
28 7 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
37. PlaintitT TechFreedom is a non-profit, think tank based in Washington, D.C.
2 TechFreedom's mission is promoting technology that improves the human condition and expands
3 individual capacity to choose by educating the public, policymakers, and thought leaders about the
4 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public
5 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes
6 the ultimate resource: human ingcnuity. TechFreedom brings this action on behalfof itself and its
7 adversely atTected statT.
8 38. PlaintitT Unitarian Universalist Service Committee (UUSC) is a non-profit,
9 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and
10 social justice around the world, partnering with those who confront unjust powcr structures and
II mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and
12 partnerships with grassroots organizations, UUSC promotes economic rights, advances
13 environmental justice, defends civil liberties, and preserves the rights of people in times of
14 humanitarian crisis. UUSC brings this action on behalf of itself and its adversely affected members
15 and staff.
16 39. All PlaintitTs make and receive telephone calls originating within the United States in
17 furtherance of their mission and operations. In particular, Plaintiffs make and receive telephone calls
18 to and from their members, staffs, and constituents, among other groups and individuals seeking to
19 associate with them, in furtherance of their mission and operations, including advancing their
20 political beliefs, exchanging ideas, and formulating strategy and messages in support of their causes.
21 40. Each of the Plaintiffs above is a membership organization and brings this action on
22 behalf ofits members has members whose communications information has been collected as part of
23 the Associational Tracking Program.
24 41. Defendant NSA is an agency under the direction and control of the Department of
25 Defense that seizes, collects, processes, and disseminates signals intelligence. It is responsible for
26 carrying out at least some of the Associational Tracking Program challenged herein.
27 42. Defendant General Keith B. Alexander is the current Director of the NSA, in office
28 8 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
since April of 2005. As NSA Director, General Alexander has authority for supervising and
2 implementing all opemtions and functions of the NSA, including the Associational Tracking
3 Program. General Alexander personally authorizes and supervises the Associational Tmcking
4 Program.
5 43. Defendant United States is the United States of America, its departments, agencies,
6 and entities.
7 44. Defendant Department of Justice is a Cabinet-level executive department in the United
8 States government charged with law enforcement, defending the interests of the United States
9 according to the law, and ensuring fair and impartial administration of justice for all Americans.
10 45. Defendant Eric H. Holder is the current Attorney General of the United States, in
11 office since February of2009. Attorney Geneml Holder personally approves, authorizes, supervises,
12 and participates in the Associational Tracking Program on behalf of the Department of Justice.
13 46. Defendant John B. Carlin is the current Acting Assistant Attorney Geneml for
14 National Security. In that position, defendant Carlin participates in the Department of Justice's
15 implementation of the Associational Tracking Program.
16 47. Defendant Federal Bureau oflnvestigation (FBI) is a component of the Department of
17 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is
18 responsible for carrying out at least some of the Associational Tracking Program activities
19 challenged herein.
20 48. Defendant James B. Corney is the current Director of the FBI, in office since
21 September of2013. As FBI Director, defendant Corney has ultimate authority for supervising and
22 implementing all opemtions and functions of the FBI, including its participation in the Associational
23 Tmcking Program. Defendant Corney personally authorizes and supervises the FBI's participation in
24 the Associational Tmcking Program.
25 49. Defendant Robert S. Mueller is the previous Director of the FBI, from September,
26 200 I-September, 2013. As FBI Director, defendant Mueller had ultimate authority for supervising
27 and implementing all operations and functions of the FBI, including its participation in the
28 9 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 Associational Tracking Program. Defendant Mueller personally authorized and supervised the FBI's
2 participation in the Associational Tracking Program.
3 50. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National
4 Intelligence (DNI), in office since August of20 1 O. Defendant Clapper participates in the activities of
5 the U.S. intelligence community, including the Associational Tracking Program.
6 51. Defendants DOES 1-100 are persons or entities who have authorized or participated in
7 the Associationa1 Tracking Program. Plaintiffs will allege their true names and capacities when
8 ascertained. Upon infonnation and bclief each is responsible in some manner for the occurrences
9 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or
10 omissions of DOES 1-100 as well as the named Defendants.
II
12
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
STATUTORY BACKGROUND
13 52. 50 U .S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as
14 amended, is entitled "Access to certain business records for foreign intelligence and surveillance
15 purposes." Section 1861 provides narrow and limited authority for the Foreign Intelligence
16 Surveillance Court (FISC) to issue orders for the production of "any tangible things (including
17 books, records, papers, documents, and other items) for an investigation to obtain foreign
18 intelligence information not concerning a United States person or to protect against international
19 terrorism or clandestine intelligence activities." The limitations on section 1861 orders include the
20 following:
21
22
23
24
25
26
27
28
• an order may be issued only upon "a statement of facts showing that there are
reasonable grounds to believe that the tangible things sought are relevant to an
authorized investigation;"
• the tangible things sought to be produced by an order must be described "with
sufficient particularity to permit them to be fairly identified;" and
• an order "may only require the production of a tangible thing if such thing can be
obtained with a subpoena duces tecum issued by a court of the United States in aid of
10 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
2
3
4 53.
a grand jury i.nvestigation or with any other order issued by a court of the United
States directing the production of records or tangible things."
THE ASSOCIATIONAL TRACKING PROGRAM
The Associational Tracking Program is electronic sUlveillance that collects and
5 acquires telephone communications information for all telephone calls transiting the networks of all
6 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day,
7 the Associational Tracking Program collects information about millions oftelephone calls made by
8 millions of Americans. This includes information about all calls made wholly within the United
9 States, including local telephone calls, as well as communications between the United States and
10 abroad.
11 54. Defendants' Associational Tracking Program collects and acquires call detail records
12 and comprehensive communications routing information about telephone calls. The collected
13 information includes, but is not limited to, session identifying information (e.g., originating and
14 terminating telephone number, International Mobile Subscriber Identity OMSI) number,
15 International Mobile station Equipment Identity (!MEl) number, etc.), trunk identifier, telephone
16 calling card numbers, and time and duration of call. Defendants acquire this information through the
17 use of a sUlVeillance device.
18 55. Beginning in 2001, participating phone companies voluntarily provided telephone
19 communications information for the Associational Tracking program to Defendants. Since 2006, the
20 FISC, at the request of Defendants, has issued orders under 50 U .S.C. § 1861 purporting to compel
21 the production of communications information, including communications information not yet in
22 existence, on an ongoing basis, as part ofthe Associational Tracking Program.
23 56. As an example, attached hereto as Exhibit A, and incorporated herein by this
24 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications
25 information for use in the Associational Tracking Program.
26 57. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached
27 hereto and incorporated by this reference.
28 11 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 58. The Order is addressed to Verizon Business Network Services Inc., on behalf ofMCI
2 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively
3 "Verizon"). Verizon is one of the largest providers of telecommunications services in the United
4 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it
5 owns, controls, or provides services to, Verizon provides telecommunications services to the public
6 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global,
7 LLC; MCI Communications Corporation; Verizon Business Network Services, Inc.; MCI
8 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership).
9
10 59.
BULK SEIZURE COLLECTION, ACQUISITION, AND STORAGE
The Associational Tracking Program seizes, collects and acquires telephone
11 communications information for all telephone calls transiting the networks of all major American
12 telecommunication companies, including Verizon, AT&T, and Sprint.
13 60. The telephone communications information Defendants seize, collect and acquire in
14 bulk as part of the Associational Tracking Program is retained and stored by Defendants in one or
15 more databases. These databases contain call information for all, or the vast majority, of calls wholly
16 within the United States, including local telephone calls, and calls between the United States and
17 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the
18 telephone communications information of millions of ordinary Americans, including Plaintiffs, their
19 members, and staffs, as part of the Associational Tracking Program.
20 61. Defendants' bulk seizure, collection and acquisition of telephone communications
21 information includes, but is not limited to, records indicating who each customer communicates
22 with, at what time, and for how long. The aggregation of this information discloses the expressive,
23 political, social, personal, private, and intimate associational connections among individuals and
24 groups, which ordinarily would not be disclosed to the public or the government.
25 62. Through the Associational Tracking Program, Defendants have seized, collected,
26 acquired, and retained, and continue to seize, collect, acquire, and retain, bulk communications
27 information oftelephone calls made and received by Plaintiffs, their members, and their staffs. This
28 12 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 information is otherwise private.
2 63. Because of the Associational Tracking Program, Plaintiffs have lost the ability to
3 assure confidentiality in the fact of their communications to their members and constituent.
4 Plaintiffs' associations and political advocacy efforts, as well as those of their members and staffs,
5 are chilled by the fact that the Associational Tracking Program creates a permanent record of all of
6 Plaintiffs' telephone communications with their members and constituents, among others.
7 64. Plaintiffs' associations and political advocacy cfforts, as well as those of their
8 members and staffs, arc chilled by Defendants' search and analysis of information obtained through
9 the Associational Tracking Program and Defendants' use and disclose of this information and the
10 results of their searches and analyses.
11 65. Plaintiffs' telephone communications information obtained, retained, and searched
12 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times
13 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing
14 authorized investigation to protect against international terrorism or clandestine intelligence
15 activities.
16 66. Defendants' bulk seizure, collection, acquisition, and retention of the telephone
17 communications information of Plaintiffs, their members, and their staffs is done without lawful
18 authorization, probable cause, andlor individualized suspicion. It is done in violation of statutory and
19 constitutional limitations and in excess of statutory and constitutional authority. Any judicial,
20 administrative, or executive authorization (including any order issued pursuant to the business
21 records provision of 50 U .S.C. § 1861) of the Associational Tracking Program or of the acquisition
22 and retention of the communications information of Plaintiffs, their members. and their staffs is
23 unlawful and invalid.
24 67. Defendants' bulk seizure, collection, acquisition, and retention of the telephone
25 communications information of Plaintiffs, their members, and their staffs is done (a) without
26 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have
27 committed or are about to commit any crime or engage in any international terrorist activity; (b)
28 13 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their
2 staffs are foreign powers or agents offoreign powers; and (c) without probable cause or reasonable
3 suspicion to believe that the communications of Plaintiffs, their members, and their staffs contain or
4 pertain to foreign intelligence infonnation, or relate to an investigation to obtain foreign intelligence
5 infonnation.
6 68. Defendants, and each of them, have authorized, approved, supervised, perfonned,
7 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,
8 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking
9 Program and in the seizure, collection, acquisition, and retention of the telephone communications
10 infonnation of Plaintiffs, their members, and their staffs. Defendants have committed these acts
11 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue
12 to do so absent an order of this Court enjoining and restraining them from doing so.
13
14 69.
SEARCH
Through the Associational Tracking Program, Defendants have searched and continue
15 to search communications infonnation of telephone calls made and received by Plaintiffs, their
16 members, and their staffs. Defendants use the communications infonnation acquired for the
17 Associational Tracking Program for a process known as "contact chaining" - the construction of an
18 associational network graph that models the communication patterns of people, organizations, and
19 their associates.
20 70. As part of the Associational Tracking Program, contact chains are created both in an
21 automated fashion and based on particular queries. Contact chain analyses are typically perfonned
22 for two degrees of separation (or two "hops") away from an intended target. That is, an associational
23 network graph would be constructed not just for the target ofa particular query, but for any number
24 in direct contact with that target, and any number in contact with a direct contact of the target.
25 Defendants sometimes conduct associational analyses up to three degrees of separation ("three
26 hops") away.
27
28
71. The searches include Plaintiffs' communications infonnation even ifplaintiffs are not
14 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 targets of the government and even if they are not one, two or more "hops" away from a target. All
2 telephone communications information is searched as part of the Associational Tracking Program.
3 72. Plaintiffs' telephone communications information searched pursuant to the
4 Associational Tracking Program was, at the time of search and at all times thereafter. was neither
5 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to
6 protect against international terrorism or clandestine intelligence activities.
7 73. Defendants' searching of the telephone communications information of Plaintiffs is
8 done without lawful authorization. probable cause, andlor individualized suspicion. It is done in
9 violation of statutory and constitutional limitations and in excess of statutory and constitutional
10 authority. Any judicial. administrative, or executive authorization (including any business records
11 order issued pursuant 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching
12 of the communications information of Plaintiffs is unlawful and invalid.
13 74. Defendants' searching of the telephone communications information of Plaintiffs is
14 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs. their members, or
15 their staffs, have committed or are about to commit any crime or engage in any international terrorist
16 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members,
17 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or
18 reasonable suspicion to believe that Plaintiffs'. their members'. or their staffs' communications
19 contain or pertain to foreign intelligence information or relate to an investigation to obtain foreign
20 intelligence information.
21 75. Defendants. and each of them. have authorized, approved, supervised, performed.
22 caused. participated in, aided, abetted. counseled, commanded, induced. procured, enabled.
23 contributed to, facilitated, directed, controlled, assisted in, orconspircd in the Associational Tracking
24 Program and in the search or usc of the telephone communications information of Plaintiffs, their
25 members, and their staff. Defendants have committed these acts willfully. knowingly, and
26 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of
27 this Court enjoining and restraining them from doing so.
28 15 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
INJURY COMMON TO ALL PLAINTIFFS
2 76. Each and every Plaintiffis informed and believes that its associational activities have
3 been harmed since the existence of the Associational Tracking Program became publicly known.
4 Each Plaintiff has experienced a decrease in communications from members and constituents who
5 had desired the fact of their communication to Plaintiff to remain secret, especially from the
6 government and its various agencies, or has heard employees, members or associates express
7 concerns about the confidentiality of the fact of their communications with Plaintiffs. Those
8 Plaintiffs who operate hotlines have observed a decrease in calls to the hotlines and/or an increase in
9 callers expressing concern about the confidentiality of the fact of their communications. Since the
10 disclosure of the Associational Tracking Program, Plaintiffs have lost the ability to assure their
11 members and constituents, as well as all others who seek to communicate with them, that the fact of
12 their communications to Plaintiffs will be kept confidential, especially from the federal government,
13 including its various agencies. This injury stems not from the disclosure of the Associational
14 Tracking Program, but from the existence and operation of the program itself. Before the public
IS disclosure of the program, Plaintiffs' assurances of confidentiality were illUSOry.
16
17
77. For instance, these specific Plaintiffs experienced the following:
(a) Plainitff First Unitarian has a proud history of working for justice and
18 protecting people in jeopardy for expressing their political views. In the 1950s, it resisted the
19 McCarthy hysteria and supported blacklisted Hollywood writers and actors, and fought California's
20 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, it gave sanctuary to refugees from
21 civil wars in Central America. The principles of its faith often require the church to take bold stands
22 on controversial issues. Church members and neighbors who come to the church for help should not
23 fear that their participation in the church might have consequences for themselves or their families.
24 This spying makes people afraid to belong to the church community.
25 (b) PlaintiffCalguns Foundation runs a hotline for that allows the general public
26 to call to ask questions about California's byzantine firearms laws. It has members who would be
27 very worried about having their calls taped and stored by NSAlFBI when they're enquiring about
28 16 F~TAMENDEDCOMPLAmT
CASE NO. 13-cv-3287 JSW
1 whether firearms and parts they possess are felonious in California. It has a phone number
2 specifically so people or their loved ones can call from jail becaues Californians are often arrested
3 for actually innocent possession oruse of firearms.
4 (c) PlaintiffNLG notes that much of its work involves cases (some high profile)
5 involving individuals who have been charged with aiding terrorism or who have been monitored by
6 the FBI and Joint Terrorism Task Forces for their political activism. Knowledge that its email and
7 telephonic communications may likely be monitored has resultcd in restricting what its employees
8 and members say over the telephone and in email about legal advocacy and work related to NLG
9 litigation or legal defense committees. In several instances, it has had to convene in-person meetings
10 to discuss sensitive matters. One example is its "Green Scare" hot line for individuals contacted by
11 the FBI, either as targets or in relation to environmental or animal rights cases. NLG immediately
12 advises Hotline callers that the line may not be secure, asks limited information before referring
13 callers to specific NLG attorneys in their geographic area, and does not keep notes or records of the
14 calls. One foundation funder asks for records of Hotline calls, but in response the NLG can only send
15 general examples of the types of calls it receives.
16 (d) Plaintiff Human Rights Watch conducts research and advocacy such that its
17 effectiveness and credibility depend heavily on being able to interview those with direct knowledge
18 of human rights abuses, be they victims, witnesses, perpetrators, or knowledgeable bystanders such
19 as government officials, humanitarian agencies, lawyers and other civil society partners. Because
20 this type of research and reporting can endanger people and organizations, our stakeholders-
21 including even our researchers and/or consultants--often rcquire us to keep their identities or other
22 identifying information confidential. HRW has staff in these offices who talk to the above-
23 mentioned types of stakeholders by telephone to conduct research. HRW is concerned that many of
24 these stakeholders will have heightened concerns about contacting us through our offices now that
25 we are aware the NSA is logging metadata of these calls. This impairs HRW's research ability
26 and/or causes HRW to rely more on face-ta-face encounters or other costly means of holding secure
27 conversations.
28 17 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
(e) Plaintiff Shalom Center's Executive Director, Rabbi Arthur Waskow, was
2 subjected to COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968
3 and 1974. He took part in a suit against the FBI and the Washington DC police (Hobson v. Wilson)
4 for deprivation of the "right of the people peaceably to assemble." Rabbi Waskow won in DC
5 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit
6 Court of Appeals. The result of this experience is that he has been very troubled and frightened by
7 the revelations of warrantless mass searches oftelephone and Internet communications by the NSA.
8 For several weeks, as the revelations continued, Rabbi Waskow realized the likelihood that the
9 organization he leads, the Shalom Center, and he were under illegitimate surveillance and-
10 because of its involvement in legal and nonviolent opposition to US government policy in several
11 fields - possibly worse. This realization made him rethink whether he wanted to continue in sharp
12 prophetic criticism and action in regard to disastrous public policies. Rabbi Waskow had trouble
13 sleeping, delayed some essays and blogs he had been considering, and worried whether his actions
14 might make trouble for nonpolitical relatives. Rabbi Waskow certainly felt a chill fall across his
15 work of peaceable assembly, association, petition, and the free exercise of his religious convictions.
16 COUNT I
17 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief
18
19 78.
(Against All Defendants)
Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein. 20
21 79. Plaintiffs, their members, and their staffs use telephone calls to communicate and to
associate within their organization, with their members and with others, including to communicate 22
anonymously and to associate privately. 23
24 80. By their acts alleged herein, Defendants have violated and are violating the First
Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, 25
including the right to communicate anonymously, the right to associate privately, and the right to 26
engage in political advocacy free from government interference. 27
28 81. By their acts alleged herein, Defendants have chilled and/or threaten to chill
18 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
the legal associations and speech of Plaintiffs, their members, and their staffs by, among other
2 things, compelling the disclosure of their political and other associations, and eliminating Plaint~ffs'
3 ability to assure members and constituents that the fact of their communications with them will be
4 kept confidential.
5 82. Defendants are irreparably harming Plaintiffs, their members, and their staffs by
6 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants'
7 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless
8 enjoined and restrained by this Court.
9 83. Plaintiffs seek that this Court declare that Defendants have violated the First
10 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents,
11 successors, and assigns, and all those in active concert and participation with them from violating the
12 First Amendment to the United States Constitution; and award such other and further equitable relief
13 as IS proper.
14
15
16
17
COUNT II
Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants)
84. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1
through 66 of this complaint, as if set forth fully herein. 18
19 85. Plaintiffs have a reasonable expectation of privacy in their telephone communications,
including in their telephone communications information. 20
21 86. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable
expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and 22 seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including,
23 but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated
24 Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any
25 search and seizure as guaranteed by the Fourth Amendment.
26
27 87. Defendants are now engaging in and will continue to engage in the above-described
violations of Plaintiffs' constitutional rights, and are thereby irreparably harming Plaintiffs. 28 19
FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW
Plaintiffs have no adequate remedy at law for Defendants' continuing unlawful conduct, and
2 Defendants will continue to violate Plaintiffs' legal rights unless enjoined and restrained by this
3 Court.
4 88. Plaintiffs seek that this Court declare that Defendants have violated their Fourth
5 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active
6 concert and participation with them from violating the Plaintiffs' rights under the Fourth
7 Amendment to the United States Constitution; and award such other and further equitable relief as is
8 proper.
9
10
11
12
COUNT III
Violation of Fifth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants)
89. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I
through 66 of this complaint, as if set forth fully herein. 13
14 90. Plaintiffs, their members, and their staffs have an informational privacy interest in
their telephone communications information, which reveals sensitive information about their 15
personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the 16
public or the government. This privacy interest is protected by state and federal laws relating to 17
privacy of communications records and the substantive and procedural right to due process 18
guaranteed by the Fifth Amendment. 19
20 91. Defendants through their Associational Tracking Program secretly seize, collect,
acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their 21
members, and their staff without providing notice to them, or process by which they could seek 22
redress. Defendants provide no process adequate to protect their interests. 23
24 92. Defendants seize, collect, acquire, retain, search, and use the bulk telephone
communications information of Plaintiffs, their members, and their staff without making any 25
showing of any individualized suspicion, probable cause, or other governmental interest sufficient or 26 narrowly tailored to justify the invasion of Plaintiffs' due process right to informational privacy.
27
28 93. Defendants seize, and acquire the bulk telephone communications information of
20 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
Plaintiffs, their members, and their staffunder, inter alia, section 215 of the USA-PATRIOT Act (50
2 U.S.C. § 1861).
3 94. On information and belief, Defendants' information seizure, collection and acquisition
4 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone
5 communications information of persons generally is as a matter of law deemed a "tangible thing"
6 "relevant" to "an investigation to obtain foreign intelligence information not concerning a United
7 States person or to protect against international terrorism or clandestine intelligence activities," even
8 without any particular reason to believe that telephone communications information is a "tangible
9 thing" or that the telephone communications information of any particular person, including
I 0 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence
11 information not concerning a U.S. person or to protect against international terrorism or clandestine
12 intelligence activities.
13 95. This legal interpretation of 50 U .S.c. § 1861 is not available to the general public,
14 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain
15 about where a reasonable expectation of privacy from government intrusion begins and ends and
16 specifically what conduct may subject them to electronic surveillance.
17 96. This secret legal interpretation of 50 U .S.C. § 1861, together with provisions of the
18 FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial
19 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence seizur~
20 and collection.
21 97. The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking
22 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in
23 violation of the Fifth Amendment and the rule oflaw. The statute on its face gives no notice that it
24 could be construed to authorize the bulk seizure and collection of telephone communications
25 information for use in future investigations that do not yet exist.
26 98. By these and the other acts alleged herein, Defendants have violated and are
27 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their
28 21 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
members, and their staff.
2 99. By the acts alleged herein, Defendants' conduct proximately caused hann to Plaintiffs.
3 100. On infonnation and belief, Defendants are now engaging in and will continue to
4 engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby
5 irreparably hanning Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants' continuing
6 unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless enjoined and
7 restrained by this Court.
8 101. Plaintiffs seek that this Court declare that Defendants have violated their due process
9 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents,
10 successors, and assigns, and all those in active concert and participation with them from violating the
11 Plaintiffs' due process rights; and award such other and further equitable relief as is proper.
12 COUNT IV
13 Violation of 50 U.S.C. § 1861-Declaratory, Injunctive and Other Equitable Relief
14 (Against All Defendants)
15 102. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph 1
through 66 of this complaint, as if set forth fully herein. 16
17 103. The business records order provision set forth in 50 U.S.C. § 1861 limits Defendants'
ability to seek telephone communications infonnation. It does not pennit the suspicionless bulk 18
seizure and collection of telephone communications infonnation unconnected to any ongoing 19
investigation. It does not pennit an order requiring the production of intangible things, including 20
telephone communications infonnation not yet in existence. 21
22 104. Defendants' Associational Tracking Program and the seizure, collection, acquisition,
retention, searching, and use of the telephone communications records of Plaintiffs, their members, 23
and their staff exceed the conduct that may be lawfully authorized by an order issued under 50 V.S.C 24 25 § 1861.
26 105. By the acts alleged herein, Defendants are acting in excess of their statutory authority
and in violation of the express statutory limitations and procedures Congress has imposed on them in 27 28 50 U.S.C. § 1861.
22 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
106. Sovereign immunity for this claim is waived by 5 U.S.C. § 702.
2 107. Defendants are now engaging in and will continue to engage in the above-described
3 acts in excess of Defendants' statutory authority and in violation of statutory limitations and
4 procedures of 50 U.S.C. § 1861 and are thereby irreparably harming Plaintiffs. Plaintiffs have no
5 adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will continue
6 to violate Plaintiffs' legal rights unless enjoined and restrained by this Court.
7 108. Plaintiffs seek that this Court declare that Defendants have acted in excess of
8 Defendants' statutory authority and in violation of statutory limitations and procedures of 50 U.S.C.
9 § 1861; declare that Defendants have thereby irreparably harmed and will continue to irreparably
10 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active
11 concert and participation with them from acting in excess of Defendants' statutory authority and in
12 violation of statutory limitations and procedures of 50 U.S.C. § 1861; and award such other and
13 further equitable relief as is proper.
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COUNT V
Motion For Return Of Unlawfully Searched And Seized Property Pursuant To Federal Rule of Criminal Procedure 41 (g)
109. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I
through 97 of this complaint, as if set forth fully herein. 18
19 110. This Court has civil equitable jurisdiction under Federal Rule of Criminal
20 Procedure 41(g) to order the return of illegally searched and seized property.
21 Ill. Defendants, by their Associational Tracking Program and their bulk seizure,
collection, acquisition, retention, searching, and use of the telephone communications information of 22
Plaintiffs, have unlawfully searched and seized Plaintiffs' telephone communications information. 23
Plaintiffs are aggrieved by Defendants unlawful seizure and search of their telephone 24
communications information. 25
26 112. Plaintiffs seek an order directing the return of their telephone communications
infonnation in the possession, custody, or control of Defendants, their agents, successors, and 27
assigns, and all those in active concert and participation with them. 28 23
FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW
PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs respectfully request that the Court:
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Declare that the Program as alleged herein violates without limitation Plaintiffs'
rights under the First, Fourth, and Fifth Amendments to the Constitution; and their
statutory rights;
Award to Plaintiffs equitable relief, including without limitation, a preliminary and
permanent injunction pursuant to the First, Fourth, and Fifth Amendments to the
United States Constitution prohibiting Defendants' continued use of the Program,
and a preliminary and permanent injunction pursuant to the First, Fourth, and Fifth
Amendments requiring Defendants to provide to Plaintiffs an inventory of their
communications, records, or other information that was seized in violation of the
First, Fourth, and Fifth Amendments, and further requiring the destruction of all
copies of those communications, records, or other information within the possession,
custody, or control of Defendants.
Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent
permitted by law.
Order the return and destruction of their telephone communications information in
the possession, custody, or control of Defendants, their agents, successors, and
assigns, and all those in active concert and participation with them.
Grant such other and furthcr relief as the Court deems just and proper.
21 DATED: September 10,2013
22
Respectfully submitted,
lsI Cindy Cohn
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CINDY COHN LEETIEN KURT OPSAHL MATTHEW ZIMMERMAN MARK RUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION
24 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
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RICHARD R. WIEBE LA W OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III THE MOORE LAW GROUP
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP
ARAM ANTARAMlAN LAW OFFICE OF ARAM ANTARAMIAN
Attorneys for Plaintiffs
25 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
JURY DEMAND
2 Plaintiffs hereby request ajury trial for all issues triable by jury including, but not limited to,
3 those issues and claims set forth in any amended complaint or consolidated action.
4 DATED: September 10,2013
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Respectfully submitted,
lsi Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MA TIHEW ZIMMERMAN MARK RUMOLD DA VID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION
RICHARD R. WIEBE LA W OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE ill THE MOORE LAW GROUP
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP
ARAM ANT ARAMIAN LA W OFFICE OF ARAM ANTARAMIAN
Attorneys for Plaintiffs
26 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
Case3:08-cv-04373-JSW Document186-4 Filed03/l0/l4 Pagel of 3
Exhibit C
Exhibit C
1
2
3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
4 ) CAROLYN JEWEL et al., )
5 ) Case No. C:08-cv-4373-VRW Plaintiffs, )
6 ) v. )
7 ) NATIONAL SECURITY AGENCY et aL, )
8 ) Chief Judge Vaughn R. Walker )
9 Defendants ) )
10 )
11
12 [PR~P88BB)ORDER
13 Upon consideration of the parties' joint motion for entry of an order regarding the
14 preservation of evidence and good cause appearing, the Court hereby ENTERS the following
15 order based on the Court's prior Order of November 6,2007, in 06-cv-1791-VRW (Okt. 393).
16 A. The Court reminds all parties of their duty to preserve evidence that may be
17 relevant to this action. The duty extends to documents, data and tangible things in the
18 possession, custody and control of the parties to this action, and any employees, agents,
19 contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to
20 be subject to discovery in this action. Counsel are under an obligation to exercise efforts to
21 identify and notify such non-parties, including employees of corporate or institutional parties.
22 B. "Documents, data and tangible things" is to be interpreted broadly to include
23 writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes,
24 electronic messages, voicemail, e-mail, telephone message records or logs, computer and
25 network activity logs, hard drives, backup data, removable computer storage media such as tapes,
26 disks and cards, printouts, document image files, web pages, databases, spreadsheets, software,
27 books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets,
28 Joint Motion for Entry of Order Regarding Preservation of Evidence Jewel et aL v. Nalional Security Agency el al., Cue No. 08-cv-4373-VRW
1
2
3
4
5
6
7
8
9
summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films,
digital or chemical process photographs, video, phonographic, tape or digital recordings or
transcripts thereof, drafts, jottings and notes. Information that serves to identify, locate, or link
such material, such as file inventories, file folders, indices and metadata, is also included
in this definition.
C. "Preservation" is to be interpreted broadly to accomplish the goal of maintaining the
integrity of all documents, data and tangible things reasonably anticipated to be subject to
discovery under FRCP 26, 45 and 56(e) in this action. Preservation includes taking reasonable
steps to prevent the partial or full destruction, alteration, testing, deletion, shredding,
incineration, wiping, relocation, migration, theft, or mutation of such material, as well as 10
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negligent or intentional handling that would make material incomplete or inaccessible.
D. Counsel are directed to inquire of their respective clients if the business or
government practices of any party involve the routine destruction, recycling, relocation, or
mutation of such materials and, if so, direct the party, to the extent practicable for the pendency
of this order, either to
(l) halt such business or government practices;
(2) sequester or remove such material from the business or government practices; or
(3) arrange for the preservation of complete and accurate duplicates or copies of such
material, suitable for later discovery if requested.
Counsel representing each party shall, not later than December 15,2009, submit to the
Court under seal and pursuant to FRCP II, a statement that the directive in paragraph D, above,
has been carried out.
IT IS SO ORDERED.
Dated: Nov. 13 ,2009.
Case3:08-cv-04373-JSW Document186-S Filed03/l0/l4 Pagel of 5
Exhibit D
Exhibit D
...
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11 IN RE:
12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
13 LITIGATION
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17
This Document Relates To:
ALL CASES
----------------------------,/
MDL Docket No 06-1791 VRW
ORDER
o 18 ~
19 Plaintiffs have moved for an order prohibiting the
20 alteration or destruction of evidence during the pendency of this
21 action. MDL Doc # 384. The United States has filed papers
22 opposing the motion, Doc # 386, and has prepared and lodged with
23 the court a confidential submission designed for ex parte, in
24 camera review. Doc # 387. Telephone company defendants AT&T,
25 Cingu1ar, Be11south, Sprint and Verizon have joined in the United
26 States's opposition to plaintiffs' motion. Doc # 365, 388, 390. 27 Upon careful review of the non-confidential papers
28 submitted in support of and in opposition to the motion, the court
ast£ltt08:0a-011·:mnU(Rl1$W OOoo01Bat1t1Bti-S FfiietllDllIo.6/200iPageag.t g of 4
1 has deter.mined that (1) no hearing on the motion is necessary; (2)
2 an order requiring the preservation of evidence is appropriate; and
3 (3) an inter~ order shall forthwith enter requiring the parties to
4 take steps to prevent the alteration or destruction of evidence as
5 follows:
6 A. Until the issues in these proceedings can be further
7 refined in light of the guidance and directives anticipated to be
8 received upon appellate review of the court's decision in Heptinq v
9 AT&T Corporation, 439 F Supp 974 (N D Cal 2006) and of the Oregon
10 district court's decision in Al-Baramain Islamic Foundation, Inc v cu 's 11 Bush, 451 F Supp 2d 1215 (D Or 2006), the court reminds all parties
t:cS =:.= ~ cu 12 of their duty to preserve evidence that may be relevant to this U U -"'"' .~ .::= 13 action. The duty extends to documents, data and tangible things in 1.0 0 t:'.E S'~ 14 the possession, custody and control of the parties to this action, 1110 ~ e 15 and any employees, agents, contractors, carriers, bailees or other .5 CI) CI.l.Q ~ ~ 16 non-parties who possess materials reasonably anticipated to be =Z ~ .s 17 subject to discovery in this action. Counsel are under an
& 18 obligation to exercise efforts to identify and notify such non-
19 parties, including employees of corporate or institutional parties.
20 B. "Documents, data and tangible things" is to be
21 interpreted broadly to include writings, records, files,
22 correspondence, reports, memoranda, calendars, diaries, minutes,
23 electronic messages, voicemail, e-mail, telephone message records
24 or logs, computer and network activity logs, hard drives, backup
25 data, removable computer storage media such as tapes, disks and
26 cards, printouts, document image files, web pages, databases,
27 spreadsheets, software, books, ledgers, journals, orders, invoices,
28 bills, vouchers, checks, statements, worksheets, summaries,
2
as€MieS:6S-M.mGlI.RWW OOouDTBetlBDm-5 RiIiIetIG)YCla/a~J(JiPageggu S of 4
compilations, computations, charts, diagrams, graphic
2 presentations, drawings, films, digital or chemical process
3 photographs, video, phonographic, tape or digital recordings or
4 transcripts thereof, drafts, jottings and notes. Information that
5 serves to identify, locate, or link such material, such as file
6 inventories, file folders, indices and metadata, is also included
7 in this definition.
8 C. "Preservation" is to be interpreted broadly to
9 accomplish the goal of maintaining the integrity of all documents,
10 data and tangible things reasonably anticipated to be subject to
11 discovery under FRCP 26, 45 and 56(e) in this action. Preservation
12 includes taking reasonable steps to prevent the partial or full
13 destruction, alteration, testing, deletion, shredding,
14 incineration, wiping, relocation, migration, theft, or mutation of
15 such material, as well as negligent or intentional handling that
16 would make material incomplete or inaccessible.
17 D. Counsel are directed to inquire of their respective
18 clients if the business practices of any party involve the routine
19 destruction, recycling, relocation, or mutation os such materials
20 and, if so, direct the party, to the extent practicable for the
21 pendency of this order, either to
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28
(1) halt such business processes;
(2) sequester or remove such material from the business
process; or
(3)
duplicates or
if requested.
\\
arrange for the preservation of complete and accurate
copies of such material, suitable for later discovery
3
tU "e t:~ =:.: ~ tU U U .... ~ Col 0 ...... a.. 0 -;;".6 .• Q"~ WJO ~ E :! ~ oo,€ "0 0 ~Z = IU ~-S ...
0 IJ..
I The most senior lawyer or lead trial counsel representing
2 each party shall, not later than December 14, 2007, submit to the
3 court under seal and pursuant to FRCP 11, a statement that the
4 directive in paragraph D, above, has been carried out.
5 The clerk is directed to vacate the hearing now scheduled
6 for November 15, 2007 in this matter.
7
8 IT IS SO ORDERED.
9
10 VAUGHN R WALKER
11 United States District Chief Judge
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Case3:08-cv-04373-JSW Document186-6 Filed03/l0/l4 Pagel of 8
Exhibit E
Exhibit E
.. ' . ; . ' ... ' .' Cas,~3:08-cv;,04~73~JSW . DpcumenU86-6 Filed03/10/14 Page2 of 8
.' '. C!ridY·¢C?·hri<¢i~dy@~~~o·rg~:.. ' .... . .. :'. N!arch 10,2014 8:35AM To:: uaE!rm~n ... M~rci~' (CIVt. <[email protected]>. .
. Cc: lI~i.lliganf··.Jjiii '(CIV)~ ·<Jam~.s,Giliigan@ u.sdoj.gov>, "[email protected]!' <wie.be@:p·acbe.lI;net>.,.Stephanfe Shattuck·<[email protected]>, "Thomas·E. Moore III (tmoore@~oo.r~laY4~ani.som)" <[email protected]:>, "Patton, Rodney (CIV)"
· <~odney~Pa~pn'~usc;foj;go~, "Dearinaer;' B~an (CIV)" <Bryal"[email protected]>, ulI~lnn M: · Maazelu <[email protected]> . . .
Re: PresEiniaticiri 'of Evldence.in Jewel V. NSA and First Unitarian Church v. NSA ·S8tlid.tY: ·ri"Slgn~d ([email protected] .... .' ,
. .' ":,' " : 0_ .... _ ..... ' .... ~ ,. "_:. :,. ': '~'." _. • ...... :,.: •• ,
..... ", .; "
. Dear. ~~cy, .. · :.'. . . .. ','
. ,
r'am, 'SOrr;Y:'~~t 'We '~dn9~ h~~'fI:o~ you ~termy·message on' Saturday asking for further ... clarlfic.~uo~:·a~Q\it '~ow thegove'rnment plans to ensure that it· does not spoliate evidence. I · . U~ess -we ~~ear frpm Y.9U by noon Ga.I.iforni,a time today that the government does not ! ·intend··to··4estfoy.·eV14.eQce.th~t.may be likely to . .lead to the discovery:of:admissible evidence I under' the ciailni:f,raised ·in· Jewel 'an,d First 'Uhitarian cases,. we intend. to':seek a TRO from I .
'JUdge White~: ;. . . '.' . '. . ..: ". . .. "'~'. ,' ..
'.' : Piea~~ ~~··o;··~~~ ~~:if'~~~~'dtik~'i~ .discuss·thi~ furthe~. My cellphone 'is 415-307~2148. ·We·have nq 4e~ire:to .elevate this .in~o ail:emergency matt~r before·the court but believe we
. .nave nO'-ehoice:based l,lpon.the govemment!s actions.and statements so far . • , • • .,1' •••. . ,.'
. "".'
'. 'Cindy "c' :.'. :.;'::. '. , .
..... . '. ':6 '. ':"~'~~::~bi4,'\l~:i:i':'43'~~ Chldy c .' <c'indY((i;efCor.g> ·Wr6~e:.·,· .: .', .• ". .. ,.~ , • ' •• !, • ~ "'. : -:",. . • ~ :: ., .'. :. • •.
. ,
~ troubling tq us, as is your notice to the. court in First
:.A~:Y9Ukh . ;'both~ewel v~' N "'~d First Unitarian' Church y. NSA ari.se fro~ the .ongoing:· ~k c'one~tion 'of teleph e record's, as did Hepting and the other MOL cases
·:befor .. ~~.(a)6ng with additiomil i- . rination at issue iri Jewel that must also be . pre . ed) .. N~ither:'tl1e coniplai~ts no 'e protective order mention the "President's , .. S ·~i.llance"Piogx:am~· '~o:'your reference. .that'program is confusing .. The c1ai~s arise
. om the:act~at activity Of bulk c'olle~tion state ongoing claims regardless of the legal or ·ex~~utive.;~u~ority und~r which th~ gove ent claims)! conducts that 'activity at 'any pOint)h-tiin~:.> .:: .... :.... ::.......... . .
. ' . . i .' I; . -':' . . .
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'. Case3:08-cv-04373-JSW DocumenU86-6 Filed03/10/14 Page3 of 8
.. ,
.. '
. Cindy Goh~··<Cjnd·y~eff.org; .' March 8, 201'4 11 :43 AM · Tq::J~B.eriTlari;·M~pia (CIV)'~ <Marcia;[email protected]> · . cC:'II~nlig~n, ~im .(CIV)"<james~Gjlligan @usdoj.gov>, '[email protected]"<wiebe@
Stephanie Shatt~~k·<[email protected]>. "Thomas E. Moore III ([email protected])" · <trt:lo.ore.@!mobr~law:tearn,cb~,:lIpa:tton, Rodney (CIV)II <Rodney.Patton@usdo).gov>, IIDearinger, Brya!1·(CIV)n·<Bryat:l.Oearing~r@usdoj:goV>i IIl1ann M~ Maazel" <[email protected]> Re: .Preserva~l~n·of:Ev~di:ln~~.in Jewel v. NSA Se~nty: ~'Slgn~ (cindy@eff .. org) ',. . . ."."... . . .
'", .. . .. "
DearM~cy • . ',:,- ",
:Yo.ur·r¢sp~i?se isco,rifuslng a,nd. troubling to Ul:1. as is youz: notice to theco~rt in First Ut.ritarii:4i·Utaty6u.~n.tendto'begin. to destroy call detail records on Tuesday, March II, .wJ1ich i~j~st:.tWo ~us4.1~ss days.from now. To. b.e cl~ar, the Qnly court that can relieve the ,gOY~mm.~I'lf:Qf its ·oQlig~tions·to :preserv~ evide~ce in our' ca:ses, regardless of the basis·.for those~ obugations; is the Northern District of California and it has not done so. This is true in~j~wei.~(fin'~s:t:'.Uriitariari.: .' . ...., . .
. :-- A~ you ~~~~ 'both' J~W~lv~.NSA ~d First Unitarian Ch~rchv. NSA a,rise from the ongoing . ·,b~.can~ction .oft~lepho~e records. ~s did.E:{eptihgand the·.<?ilier MOL cases before that
. (along :wi'th additionafinformation at "issue in' J ewet that' must· also be preserved). Neither · the e·0~p1a,iOtsp.or:th~ prot~~tive. order mention the .iPiesident's Surveillance. Program" so
. : . Y0?t;.r~!erence·.to ,~~ ·:pr0gram,,~s',con.f~s~g.: The .cl~s ·arise:fr.oIn .the 'a~tual ~ctivityof "':. "b~ .~<?~eqti-0~:,~,Q~· s~~~~::ongoirig '<?Ia:iIIis .reg~dless· of the legal or exe~utive a~ thority .
under. whlcli'#,1e 'gbyerriJilerit c1J$1s'it conduCts that. a~tivity.~t any·po.int in ,time . • "'0 ".;' .... ' \. :': .• '. .' '. • . • ', •
. ' .. M9~~oye~:::We 'do'nat Jl~deis(~d'how tile ·presexVa~ori. ord~r'41'place iit'Je~el (and. '.'. · siiu~ei:t): ~de~·,i1O.fat~o inClude :t1:ie preservation of the records at issue. iIi First Unitarian . . " WC'!.fJit,tbet:do qat ·u.ride1:"sta:nd.w.hy the government failed to infonn ~e FISC ofybur duties · irt.J~wel arid Shuberfsincethey'require you.to preserve the same records orwhy it waited
'. .un~l ju.st ,bef()r~,1;lie ·:dead~~. to: se~k darity' ~n this i~sue,~esu,lting in an apparent . "eri1~rgeney si.tuation .. that.cQuldeasily have been avoided.· .' . :.
',' . ... . ... . .' .
:'. : W~··~·~~~k·.~c~ti6~ 'from J'udge W.hite- on ~s:.but we urge you ~ot t~ de~troy any . '. records I:el~VaIit tQ o.w.. Claims in ~i~er case until w~ can do so. Please do provide us with . . . '{uU.infomuition so, that we'GaD. narrow·the i~sues before the court. Frankly, your"C~mail to .... ~e.y¢St~4ai and;~g"in $e !fii"st ... Uriitarian case yesterday raise mor~ cpp.c~rns, not less,
... ,; .'. 'tha:d:he goveti$le,nt'has not' been fu~g'its duties to preserve relevant evidence in either . '. ' . case. Pfease':note 'that we,will seek'all available remedies if it turns out that the
· govetii:tne.n.t,(l:a~ 'n9't:abided by it;:; dlities. ", . ". ".:. _ .. ', .-' .. : -', '" '. .
". '. :. C~ndy
.... ... ' . '"
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: .. :. ~:.'. ~ . • ': •• ' "',.' 0°. • ••.•••••.••• ' ...... : ," .
. .
., ... '. Case3':08";;cv-94373~JSW Qocument186-6 Filed03/10/14:' Page4 of 8 .: ..
. :
On.M~ 7~.;2014,· ai 6:'14 PM, lti3erm~, Marcia (Crv)" <[email protected]> wrote:
.' qndy --I~ ~esponseto your. questions regardfng the preservation orders in Jewel (~nd the prior · H~ptl~g decisio:r:'l. t~e Government's niotioilto the FISC, and the FISC's. decision today, addressed the rec~nt iitig~tion ~hanenging the FISC-authorized telephony metadata collection under Section il"S·-·lJtigatip.n asto which the~re are no preservation orders. As·we.indicated last week, the Government's moti.on did not address the'pend'ing Jewel (and Shubert)" litigation because the district cOlfrf had preyiously entered preservation orders applicable to those cases. As we also indicated,
· since the entry q{those 'orders the.Government has complied with our preservation' obligations in those·cases. At ·the.;ti"m.e the preservation issue was first litigated in the MOL proceedings in 2007, the Government s'ubmitted a classified ex parte, in camera declaration addressing in detail the steps ta.ken t.o·meet our prElservatior,1obligations. Becausethe activities undertaken in connection with the Pre$i.deht's·SLirV~lI!an.ce·Program (PSP) were not de.c1assified until D~cember 2013, we were not
'. abie .to ·¢onsult. with: you.·~revioLisIY about the speCific preservation steps that have been taken with : .' . r~spect to ~~e Jew~l.Iitigation:. 'However, th~ Government·described for the district court in 2007 : how it was ineetl.ng"its prE!servationobligations, including with respect to the lnformation concerning .' . the PSP'ac:~i~iti~s dedassified las.t December .. We have been working with our clients to prepare an ' .. u'ndassified:sum'in~ry af.the·preservation steps described to the court in 2007 so that we can . ·address¥.our questio~$'h~ri orde'rly fashion w'tth Ju~ge White, if YOll continu·e·tdbelieve that is
necessary.
Than~s: -~ :'Marty . .' . . '. . ~;!. , ... : '.' '., ': " .~ .' . . _. ....:.-:....-...l~_._ ..... __ ~.::".~:-. ___ ..... _. __ .. ~ ....... ~ ... ~ ,r_ 0.'_
. . .' ffom:'·Beiman;-'Mar:tla (CiV):' .: . ' . . : 'Sentl'FrldaYi March 07;:2014.6:14 PM .
. To'::Cinqy'CQho ",.' .' . . . '. . . ". CC~ 'Gilliga~; Jirn '(cry); [email protected] Stephanie Shattuck; Thomas E. Moore III
·(tmoore@i'nOorelawteam.oom); Patton, Rodney.(CIV); Dea'ringer, Bryan (CIV); IIann M. Maazel · Subject: 'FW:preServ~t1on of" EvidE;!nce in Jewel. v. NSA.. .'
'. ", ' ..... " "0·: '.' .,.. . • '1 '.. • .••••• • •• ',.' ••• ' ."; • . ' •
: : .... Ci;,~{~ we'il ge't back·.toyou. on'thistoday, hopefully wit.hin an hour. Thanks,":, Marcy ~. .... .' ..",.. ., . '. '" . . : ·ir.~~:~~~.~9t::B~~~ .(~Y)' ... """-:'~"7':."::'-·" ................ : ..... _ ... -.... . .... , _._ ...... : .... :~.-....... _ ............ __ ... -.... .
. . .$ent: Fri.daYi. Mardi. o~,. 2014 .4:39. PM \ .' . To: Berman/Matcla (ClV) . . Su·bjeCt~. fW: 'Preservation of Evidenc~.in Jewel v. NSA .; ..•.. ,,~.: .. ,->:'- .• ~ ... ,:' .. :,." ~ '.' . : " " .
pil .. :. ,;',_ --.!....-~---.-.-~-~:.-.:.:::...-.:i :_.,._.~.~_. _~ .... . -.~ ri, .. - •.
fr~m~:cindy '~Jin Tma,iltwd·[email protected]] . ·$ent':Jr.iday,'"'March 07,'2014. 4:37 PM To~"GiIIlgaD,:]im (aV). :" '. .
... Cc::Rick:Wiebe~·StephanieShattuG:k; rtiomas"E. Moore III; Patton, Rodney (CIV);'Oearinger, Bryan (eIV); " . Ilanri ;M/M~arel' .... .' .' ...... '.' .'. . ...... . .' .
Sl:i·bj~ct::.~.e: ~~rVation 'of EvidenCe in Jewel v ... NSA . .' . ':' '.;" ~. . .. . .' :'. .' . . ."
.. '.: . . "" '".' ,::,,=". '."
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, . :.,.:,~::, .". '.' C~~~:08-C~-94373~JSW Document186-6' Filed03/10/14 PageS of 8 ,';' '.' .'. . ' "
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Hi)im •.
I assu~e'you;\'e' ~een the 8SC Order. Can you please explain hmv the court could be under the. misir.npressiqn that there are·nopreservation orders for the telephone records info11l1ation in place given the I~istory·.apewel and Hept~ng· before i~? As you might expect. this i~ quite alarming t6.ti~~· . '.' ..... . . .
,'We '~~ili be:flli~lg ~omethfpg. shortly and I wanHo be .suie that w~ correctly state your position.
'Cindy
. Senf from"mY· phone
On·Feb.28',2914~at S:17. PM~ Ci.ndy Cohn <cindy@efCol'g> wrote: . " . .
: ."'. 'Weil ~~~it'a bi~assum'i~g:this doesn't.·dl:ag on too long. Thanks for responding, '. . .. ".. . .
',. . < >: ,.9iridY.· .'. : .:" , .
. .' .:. '. "S~ni·fi.~om:~~y:phol1e
.. :, ':: ·'>.··On ·F:~Q.;28~. ·2o·i.4~: at'S ;26 PM~ "Gilligan, Jinl (CIV)" <1 ames.GiII ig~@usdoj .go~> . . wrote:"':' .... .;....: . .' '. . .' . .....: .:.... .... . , ., ... : .. ' ~'., ,~" ' '" ' , ,
.: .".":":::'>:~':~i'~'~Y'" .<>.: ". ,: :~ ... " We ~I~'r:ec;eive y6ur email about preservation, ~nd I ~anted to get back to
. '.:' ..... :. ,·:you.before the' week ended to Jet you know that we will need a.bit more '. '" '~n:1~ ~~"pr~p.~r·e'a.·.m~~e complete: response than we will be.able to do. by·
.... :'.':.' Mqnday"~So'l wquld a.sk that YQU forbear from filing anything with the . '. '. . .... FISC~'.or;Judge·Whi~e, (mtil we:have fu·rther'opportUJ:lJty to confer.:·As' you
.'~ " ;., . 'n9ted;-ie~el and Shubert are ,.Iotspeiifically·me·ntioned in the·motion.we ..' : ..... ". , ..... "fil~d with th.e ,F.ISC,:b·~t as you alsQ o.bserved; the question of. preservation·
..... : " : ,':: . ~' .. "h'~~alf~a'dy bee,n .Iitigat~d In those' cases; 'and th'e court issued s~parate .. .' ... ".: .. , ·p.~eservation ·orders that gQvern th!!!re: Many ofthe details surrounding .' , ...... ·th~·i.nteJligenc!!! prog~ams.in question remain classified, however,' and so
, '.': .':: ·:,)h~re·.remain·l(mitatio·ns on ou'r ability to confer with you concer'nhig our . .:. ." .:: com~h~~I::~ with those orders.' ' . . .
.... . At,thjs.poi~t 1 ~'eed to .~onsult further with my clients fo ~scertain. how· .' .. mUlZh .informatiqri·lcan convey to you 'about the Government's' ..
'. '. . ... jlres~rVation efforts without revealing classified information:· I simply . ';::" <,'.: won'tbe:·in.3 position to "provide ,you with a' detail~d response to you r . '" :'. " . .' ~ .; , ~. , .
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.. , Case3.:oa':cV-04~73-JSW Document186-6· Filed03/10/14 Page6 of 8
.inqufrY bY,'Mond·ay, as you'reque,st, in part:because of the work that remains <;m ,our reply to your brief on the court's four questions, and in part becalJse I w.U(',be outohhe office on Moriday and Tuesday for a family
. ,ski trip·; (Also,· as you observed, Miucy is presently diverted by another matter,.) '·~:ut we will do our besfto address your questions by the middle
, of next week.
'. JG
, james J. Gilligan : ~pedal ~ltlgation Counsel ., Civ.i1 Division; Federal P.rograms Branch
.. , "U.S: Oep'~rtment 'of Justice , : . " P.O. Box 883
W~stiingt~n; D.C. ,20044 " '
: ". Tel:'- 2,o.2~Sl4:-33S8 ' . .... " ..... ' .". '" ." '.:"';' ,:'.".. "'-'
, '~~C:;~:-~Ci~d~ Coh~ fm~iitc;:[email protected]] .. ' ::' Sent: Fri~ay, Febru~rY 28, ,2014 5:54 PM
" '. To:· Gilligar:Ji' Jim{OV) , " ,. '. cc::. Rick Wiebe; Stephanie'Shattuck; Thomas E. Moore III; Patton, Rodney ",:. ., ,."',:: (OY);:Dearil)ger, Bryan (CIV); Irann·M. Maazel .
. .' ,', '. Subjed:Re: Preservation of Evidence in Jewel v. N5A ...... '. ,,' .,... . .' . ". . , .,
: . , ... ":: '. ;HUim~·Rod~eY·and Bry~n~ . ",;. ','- .. -;" ..... ;.. .. ,--:' .
.. , '>," '.: ,":/1 just V{.ah~il'to ,cpnfiim' thai you received· this and. I~arn \vhe:n' you will . . " ,: . 'be; responding'. ,. ,:,'.. '" ' ..
.. .' " .
,.', ':'·We)ire·pJanning ~o ,fiie something'in the FfsC and before Judge . ,,' .. :. :.Walker:eady ne"t week 'andl do want to be able to acclIrately convey
.,' .:', , .. " ' .:::' y6llfJ~osi~ion.':· .,' .. . . .. '. . ....... . .
.:", , , ., .', ThR!lks~ ,~ ..... . '. ", .'
'" .. ~
. , , "" : '. '..: ',' >, Cindy ,':'-
. "." .: ,", :':~': Qn Feb 26~ ~'O'l4, at. 4::08 PM, Cindy Cohn <Cindy@efforg> wrote: • ." ." ~ • .:' ', •. :~. ~ ,': •• ' • .'. :: ~ ••••• ; •••• '. • .' • .' ..' I • '.
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., : ........ ; Rjclc~m\vi'ite'you 'separate I)' about the schedulill'g, butiwllnted to' ',.. .... ',::ralse ~Ol'nethjng thal has ,confused us and to seek C1m·itication ..
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:' C~se3:0~"C~-:04373'':~SW DOc\Jrnent186-6' Filed03/10/14, Page7 of 8
We,saw your filing in the FISC asking thal the Court's current Primary .order be amended to authQlize the presel:vation andlor storage of call detail, recqrds b¢yond live yeat;s based upon your duty to preserve evidence' and nl'emiotiing the First Unitarian case specitically. We do agree that the governri1.ent has a duty to preserve all rcasonably anticipated to be suoject to discover)' in this action. ' We, were
'" suipri'sed, ho\vever, that you did not approach us to discuss ways that this duty could 'be met Sh011 of the request you made. which \ve read as ailQwing you to preserve all of the mctadata you have collected .
. ". : .. :', :W,e. also:wrjt~ because. as '1 think you knO\v, the government has been '. . . '~nd~r an :obligatiOli to.pre~elve telel,hone records i~ has colJecte9 'since . :2006:0 \vhe!1:tIie cases tliat ninde, lip the'MOL action in Re NSA 'were
.. '. r.~dilecJ:.',One'ofthosc,cases. Shube11 v. Obama;' has remained· '''', ongoing sirl.ce-,that time. 1J1ato~ligation was l'eiritbrced by an Order
, .. " . .,' . issu~4. l>y Jl:ldge 'Walker in 2007 and orderwas speciticalIy adopted by , .' .. tIje court.in.Jewel·v. NSA in 2009 by ajoint reque$t by the'government , , . and the pla~ntiffs (Jewel v. NSA, Do~. 51),
• I,' '~" . . •..
, '.' Th~s my' C,9ntuSipll.'T!11 n.ot $ute'why the Jewel (al~d ~hubert) ca~es · . ,w~re'riotmfmtion~d:~>r,retet~nced inth¢request to th~FISC since both
.. " ':,' .. 'Of.those·also contain ongoing preseryation obligations'reiate(;i'to the · '<:, , 'bulk ·phpneTecords· collectiOl1 by the NSA. Since they were liot, it also
: '. raises' the'-questi'on of\vhethel' and how the government has beeil , .'.. . '. ,.' abiding;by,its <?bligatiol1 tp preserve evidence in those two c~es; since
, .. :' 'Obviollsly both 1;tave been pending for more than five years. ," .'.. . .....:.. :: .. . . '. . . , . . . .
. " . 'I·w~uld ~ppre~iate'a pronlpt response and clarification. I'm confidellt . ':." .:, .... tha,t'~he':g~verl)m~nt takes ·se.rious\y its· obligation to preserve .evidence
:. " ,:" ',,::: .. '.' ,that m:ay'be ie,l.evant to pend}ng litigation, butgiven the situation, I .: .: :,.,. __ .'" would. 'like !l'. speCific rcaftirination that bulk telephone records "
. :' .... ' .'. c'o:ll¢cted by the:NSA'have been'preselved ~n the Jewel case and.I "' .. ':" '. :," susp:ect mujn is.ce~cel'~led ab~utlhe same for Shubert. I would also " .... '. .,' request some more specific intbnu'atio11 about hO\\i thilt preseivation
. :'. '. has 0£9ur,red -;similai·.to thepl~n you suggested to the FISC 1n your . ,', . motion:' . . " ...' , .
;' ' :.: I hope y<?u.~an provide us with a thorough response, before any .. ": apdhioilalp!}one. records ate destroyed and hopefully by Monday,
' .. :. :' .:~ .. ,,·March -3.- While welie liopeful that we w~1I rece·i~e a satisfactory . ", . '.' "':': ~·~.·,.r~sP.9hse, but.'ifnoii"ve dointen~ to.rwse ihis question wit!?-'both the,
'. ' .':.' ' . .' ,':.',' ',.::FISGand the .judge.'White. . ,. • "t' "..
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.. ' .. . '.' < .... ;:> .~. ;C~s~3:os~c:;v-b4373-JSW . Document186-6 Filed03/10/14.· PageS of S ... '
.,. ·Cindy·
.·PS:Has Marcy· gone'? I noticed that she's not on theplendings you filed last .week or on this message. .
. " ........................................................ . ' CindyCohn
. legal Di~lor Eieclronlc Frontier Fciundation
... 815 Eddy Street " San FraneisCo.,CA ~4109 .
. ; :C41~) .436-933,3 x108 . . · ~--.:clndy@efl,Ora , , · ~-WwW,elf,ora .- . " .';
Join':EFFI hHps:usupporters.eff.org/donate ". . . .
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Sao,Fnmcisco. C1.' 941 09 · (41S):43s.:~33~ x108 .
-":':ClndY@'eff,cirg . -- WWw,§ff:org , " , : .. . ,.' ' ......
" , ,."':. Joiri.EFF.f httPS:llsupporters,sff,org/donate . : .. : ~', .:: .... : •.•. ~:.. . '. ::' "
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Case3:08-cv-04373-JSW Document186-7 Filed03/l0/l4 Pagel of 3
CINDY COHN (SBN 145997) [email protected]
RACHAEL E. MENY (SBN 178514) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945)
3 JAMES S. TYRE (SBN 083117) MARK RUM OLD (SBN 279060)
AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) 4 ANDREW CROCKER (SBN 291596)
ELECTRONIC FRONTIER FOUNDATION KEKER & VAN NEST, LLP 5 815 Eddy Street 633 Battery Street
San Francisco, CA 94109 6 Telephone: (415) 436-9333
Fax: (415) 436-9993
San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188
7 RICHARD R. WIEBE (SBN 121156)
8 [email protected] THOMAS E. MOORE III (SBN 115107) [email protected]
LAW OFFICE OF RICHARD R. WIEBE 9 One California Street, Suite 900
San Francisco, CA 94111
ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303
10 Telephone: (415) 433-3200 Fax: (415) 433-6382
Telephone: (650) 813-9700 Fax: (650) 813-9777
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Counsel Jor Plaintiffs
ARAM ANT ARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
UNITED STATES DISTRICT COURT
FOR THE NORmERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
) CASE NO. 08-CV-4373-JSW CAROLYN JEWEL, TASH HEPTING, ) YOUNG BOON HICKS, as executrix of the ) estate of GREGORY HICKS, ERIK KNUTZEN) [PROPOSED] TEMPORARY and JOICE WALTON, on behalf of themselves ) RESTRAINING ORDER and all others similarly situated, )
) Hon. Jeffrey S. White Plaintiffs, ) Courtroom II - 19th Floor
) v. )
) NATIONAL SECURITY AGENCY, et al., )
) Defendants. )
Case No. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER
Case3:08-cv-04373-JSW Documentl86-7 Filed03/10/14 Page2 of 3
1 This matter is before the Court on plaintiffs' motion for a temporary restraining order to
2 prevent defendants National Security Agency, United States of America, Department of Justice,
3 Sarack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their
4 official capacities) (collectively, the "government defendants") and all those in active concert or
5 participation with them from destroying any potential evidence relevant to the claims at issue in
6 this action, including but not limited to prohibiting the destruction of any telephone metadata or
7 "call detail" records. The government defendants have given notice that they will commence
8 destroying call detail records on Tuesday morning, March 11,2014. ECF No. 85 in First
9 Unitarian Church o/Los Angeles v. NSA, No. 13-cv-3287-JSW.
10 Plaintiffs contend that the Court's prior evidence preservation order (ECF No. 51) as well
11 as defendants' obligations under the Federal Rules of Civil Procedure prohibit destruction of this
12 potential evidence. It is undisputed that the Court would be unable to afford effective relief to
13 plaintiffs once the records are destroyed, and therefore the hann plaintiffs face is irreparable. A
14 temporary restraining order is necessary and appropriate so that the Court may decide whether the
15 evidence should be preserved with the benefit of full briefmg and participation by all parties.
16 It is hereby ordered that defendants National Security Agency, United States of America,
17 Department of Justice, Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R.
18 Clapper, Jr. (in their official capacities), their officers, agents, servants, employees, and attorneys,
19 and all those in active concert or participation with them are prohibited, enjoined, and restrained
20 from destroying any potential evidence relevant to the claims at issue in this action, including but
21 not limited to prohibiting the destruction of any telephone metadata or "call detail" records,
22 pending further order of the Court.
23 The Court sets the following briefing and hearing schedule in this matter:
24 Plaintiffs' opening brief
25 Government defendants opposition brief
26 Plaintiffs' reply brief
27 Hearing
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Case No. 08-CV-4373-JSW I [PROPOSED] TEMPORARY RESTRAINING ORDER
Case3:08-cv-04373-JSW DocumenU86-7 Filed03/10/14 Page3 of 3
I This order expires at
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Entered at __ a.m.lp.m. on March __ , 2014
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
Case No. 08-CV-4373-JSW 2 [PROPOSED] TEMPORARY RESTRAINING ORDER
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Case3:l3-cv-03287-JSW Document86 Filed03/10/14 Pagel of 6
CINDY COHN (SBN 145997) RACHAEL E. MENY (SBN 178514) [email protected] [email protected] LEE TIEN (SBN 148216) MICHAEL S. KWUN (SBN 198945) KURT OPSAHL (SBN 191303) BENJAMIN W. BERKOWITZ (SBN 244441) MATTHEW ZIMMERMAN (SBN 212423) KEKER & V AN NEST, LLP MARK RUMOLD (SBN 279060) 633 Battery Street DA VID GREENE (SBN 160107) San Fmncisco, California 94111 JAMES S. TYRE (SBN 083117) Tel.: (415) 391-5400; Fax: (415) 397-7188 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street RICHARD R. WIEBE (SBN 121156) San Francisco, CA 94109 [email protected] Tel.: (415) 436-9333; Fax: (415) 436-9993 LA W OFFICE OF RICHARD R. WIEBE
One California Street, Suite 900 THOMAS E. MOORE ill (SBN 115107) San Fmncisco, CA 94111 [email protected] Tel.: (415) 433-3200; Fax: (415) 433-6382 ROYSE LAW FIRM, PC 1717 Embarcadero Road ARAM ANTARAMIAN (SBN 239070) Palo Alto, CA 94303 [email protected] Tel.: 650-813-9700; Fax: 650-813-9777 LA W OFFICE OF ARAM ANTARAMlAN
1714 Blake Street Counsel/or Plaintiffs Berkeley, CA 94703
Tel.: (510) 289-1626
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
17 FIRST UNITARIAN CHURCH OF LOS 18 ANGELES, el 01.,
Case No: 3: 13-cv-03287 JSW
PLAINTIFFS' NOTICE OF EX PARTE MOTION AND EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE
19
20 v.
Plaintiffs,
21 NATIONAL SECURITY AGENCY, et al.,
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Defendants. Date: March 10, 2014 Time: I :30 p.m. Courtroom 11, 19th Floor The Honomble Jeffrey S. White
IMMEDIATE RELIEF REOUESTED CRITICAL DATE: TUESDAY MORNING, MARCH 11, 2014
PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE
Case3:13-cv-03287-JSW Document86 Filed03/10/14 Page2 of 6
1 NOTICE OF EX PARTE MOTION
2 PLEASE TAKE NOTICE that on Monday, March 10, 2014 at 1:30 p.m., or as soon
3 thereafter as they may be heard by the Court at Courtroom 11, 19th Floor, 450 Golden Gate Ave.,
4 San Francisco, CA, plaintiffs will move ex parte for a temporary restraining order and, after a
5 hearing has been held, an order prohibiting, enjoining, and restraining defendants National Security
6 Agency, United States of America, Department of Justice, Barack H. Obama, Keith B. Alexander,
7 Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the
8 "government defendants") and all those acting in concert with them from destroying any evidence
9 relevant to thc claims at issue in this action, including but not limited to prohibiting the destruction
10 of any telephone metadata or "call detail" records.
II Notice of this motion has been given to opposing counsel. Attached to the Cohn Declaration
12 filed herewith as Exhibit E are email exchanges between parties' counsel between on February 26,
13 2014, and this morning, March 10,2014, in which plaintiffs have consistently stated their intentions
14 to seek relief from this court unless the government clarifies its intention to preserve all relevant
15 evidence in the two cases consistent with its obligations in both cases and the preservation order in
16 Jewel v. NSA that reaches the same telephonic records at issue in First Unitarian Church v. NSA.
17 This matter became an emergency matter because on Friday, March 7, based on a mistaken
18 belief that no preservation order existed for the material at issue, and without consultation with
19 plaintiff or this Court, the FISC denied the government's motion to be allowed to preserve the
20 telephone records it had collected. Late Friday, the government served notice in the First Unitarian
21 ease that it intended to begin destroying the records.
22 REASONS WHY RELIEF SHOULD BE GRANTED
23 The government defendants have given notice that they plan to begin destroying telephone
24 metadata ("call detail record") evidence relevant to this lawsuit tomorrow, Tuesday Morning,
25 March 11, 2014. ECF No. 85 in First Unitarian v. NSA, No. 13-cv-3287-JSW. Plaintiffs
26 respectfully request that the Court today issue an immediate temporary restraining order to prevent
27 the destruction of evidence before the Court has an opportunity to detennine whether destruction of
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PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING
EVIDENCE CASE NO. 13-cv-3287 JSW
Case3:13-cv-03287 -JSW Document86 Filed03/10/14 Page3 of 6
this evidence is contrary to the Court's November 16, 2009 evidence preservation order (ECF
2 No. 51) or othelWise contrary to the government defendants' discovery obligations.
3 The purpose of a TRO is to preserve the status quo and prevent irreparable harm 'just so long
4 as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of
5 Teamsters, 415 U.S. 423, 439 (1974). This is exactly what is needed here.
6 There has been litigation challenging the lawfulness of the government's telephone metadata
7 collection activity, Internet metadata collection activity, and upstream collection activity pending in
8 the Northern District of California continuously since 2006. The government has been under
9 evidence preservation orders in those lawsuits continuously since 2007.
10 The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead
11 case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications
12 Records Litigation, MOL No. 06-cv-1791-VRW (N.D. Cal). On November 6,2007, this Court
13 entered an evidence preservation order in the MOL proceeding. ECF No. 393 in MDL No. 06-cv-
14 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv-
15 0603-JSW (N.D. Ca1.), remains in litigation today before this Court, and the MOL preservation order
16 remains in effect today as to that case.
17 In 2008, movants filed this action-Jewel v. NSA-and this Court related it to the Hepting
18 action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel
19 evidence preservation order remains in effect as of today.
20 The government has never sought to seek clarification of its preservation obligations
21 regarding telephone metadata records from this Court or raised the issue with plaintiffs. Instead, the
22 government defendants chose to raise the issue of preservation of telephone metadata records in an
23 ex parte proceeding before the Foreign Intelligence Surveillance Court, without any notice to
24 plaintiffs and without mentioning its obligations with regard to the same telephone records in Jewel
25 v. NSA and Shubert v. Obama. Plaintiffs learned of the government's motion by reading the news
26 media, and asked counsel for the government defendants to explain why they had not told the FISC
27 about the Jewel evidence preservation order. See Cohn Oecl, Exh. E.
28 2
PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING
EVIDENCE CASE NO. 13-cv-3287 JSW
Case3:13-cv-03287 -JSW Document86 Filed03/10/14 Page4 of 6
I Indeed, the government is aware and has acknowledged that destruction of the information in
2 question may conflict with the preservation orders issued in this and related cases: "While the
3 Court's Primary Order requires destruction of the BR metadata no longer than five years (60 months)
4 after its initial collection, such destruction could be inconsistent with the Government's preservation
5 obligations in connection with civil litigation pending against it. Accordingly, to avoid the
6 destruction ofthe BR metadata, the Government seeks an amendment to the Court's Primary Order
7 that would allow the NSA to preserve and/or store the BR metadata for non-analytic purposes until
8 relieved of its preservation obligations, or until further order of this Court under the conditions
9 described below." Government's Motion for Second Amendment to Primary Order, FISC No. BR
10 14-01 (February 25, 2014). Although the government's motion in the FISC did not discuss the
11 preservation order in Jewel, this preservation order includes the same records at issue in First
12 Unitarian.
13 LEGAL STANDARD FOR TEMPORARY RESTRAINING ORDER
14 "A plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that he
15 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities
16 tips in his favor, and that an injunction is in the public interest." Network Automation, Inc. v.
17 Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v. Natural Res.
18 Defense Council, Inc., 555 U.S. 7 (2008».
19 A. Likelihood of Success
20 The Jewel preservation order required the Government to "preserve evidence that may be
21 relevant to this action." The Jewel complaint alleged unlawful and unconstitutional acquisition of
22 call-detail records, including the "call-detail records collected under the National Security Agency
23 (NSA) bulk telephony metadata program" that the Government proposed to destroy.
24 Plaintiffs sought, among other relief, an injunction "requiring Defendants to provide to
25 Plaintiffs and the class an inventory oftheir communications, records, or other information that was
26 seized in violation of the Fourth Amendment." Complaint, Prayer for Relief. This would be
27 impossible if the records are destroyed. While the Plaintiff ultimately want the call-detail records
28 3
PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING
EVIDENCE CASE NO. 13-cv-3287 JSW
Case3:13-cv-03287-JSW Document86 Filed03/10/14 PageS of 6
I destroyed at the conclusion of the case, there is no doubt the call-records "may be relevant" in the
2 interim.
3 The Jewel order also required the Government to cease "destruction, recycling, relocation, or
4 mutation of such materials." Thus, the proposed destruction would be in direct violation of the
5 Jewel preservation order.
6 B. Irreparable Harm
7 If the government proceeds with its planned destruction of evidence, the evidence will be
8 gone. This is by definition irreparable.
9 c. Balance of Equities
10 While the Government contends it is required by the FISC to destroy the records
II immediately, the FISC order belies this assertion. The FISC denied the government's motion
12 without prejudice to bringing another motion with additional facts and the FISC plainly was not
13 informed of the preservation order in Jewel or even of its existence. The FISC clearly contemplated
14 that the evidence destruction could wait while the government prepared and filed another motion,
15 and continue until the Court considered and ruled on the motion.
16 D. Public Interest
17 These records are both an affront to the rights of millions of Americans and proof of their
18 violation. Plaintiffs have no objection to severe restrictions on the Government's right to access and
19 use the information, which will address the public interest in the documents being destroyed.
20 However, it remains in the public interest to wait a short period oftime before taking action, so that
21 the fate of the documents can be addressed in an orderly fashion.
22 The necessity for this ex parte application could have been easily avoided had the
23 government defendants followed the discovery and evidence preservation practices customary in this
24 District. They could have, but did not, raised the issue ofpreserving telephone metadata records in
25 the CMC statement meet-and-confer process in September 2013 (three months after the government
26 defendants publicly acknowledged the phone records program), or at the Case Management
27 Conference itself on September 27,2013. They could have, but did not, raised this issue in the CMC
28 4
PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING
EVIDENCE CASE NO. I3-cv-3287 JSW
Case3:13-cv-03287 -JSW Document86 Filed03/10/14 Page6 of 6
statement meet-and-confer process in the related First Unitarian action during October 2013, or at
2 the First Unitarian Case Management Conference itself on November 8, 2013.
3 Thereafter, at any point between November 8 and now the government defendants could
4 have raised the issue with plaintiffs by the meet-and-confer process, but they did not. They could
5 have sought a further Case Management Conference before the Court or proceeded to raise the issue
6 by noticed motion. Any of these manifold alternatives would have pennitted the Court and the
7 parties to address the issue in an ordcrly manner. By failing to pursue any of these alternatives, the
8 government has made a temporary restraining order essential. Plaintiffs believe that no security is
9 necessary under the circumstances. Plaintiffs respectfully request that the Court issue the order
10 pending further proceedings on this issue.
II DATED: March 10,2014
12
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21
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23
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Respectfully submitted,
lsi Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MA TIHEW ZIMMERMAN MARK RUMOLD DA VID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION
RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III ROYSE LAW FIRM, PC
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP
ARAM ANT ARAMIAN LA W OFFICE OF ARAM ANTARAMIAN
Counsel for Plaintiffs
5 PLAINTIFFS' EX PARTE MOTION FOR A TEMPORARY RESTRAINING
ORDER TO PREVENT THE GOVERNMENT FROM DESTROYING EVIDENCE CASE NO. l3-cv-3287 JSW
Case3:l3-cv-03287-JSW Document86-l Filed03/l0/l4 Pagel of 2
CINDY COHN (SBN 145997) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
3 MATTHEW ZIMMERMAN (SBN 212423) 4 MARK RUMOLD (SBN 279060)
DAVID GREENE (SBN 160107) 5 JAMES S. TYRE (SBN 083117)
ANDREW CROCKER (SBN 291596) 6 ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street 7 San Francisco, CA 94109 8 Tel.: (415) 436-9333; Fax: (415) 436-9993
9 THOMAS E. MOORE III (SBN 115107) [email protected]
10 ROYSE LAW FIRM, PC II 1717 Embarcadero Road
Palo Alto, CA 94303 12 Tel.: 650-813-9700; Fax: 650-813-9777
13 Counsel for Plaintiffs
RACHAEL E. MENY (SBN 178514) [email protected] MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & V AN NEST, LLP 633 Battery Street San Francisco, California 94111 Tel.: (415) 391-5400; Fax: (415) 397-7188
RICHARD R. WIEBE (SBN 121156) [email protected] LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900 San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ARAM ANTARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANTARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
14
15
16
17
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
18 FIRST UNITARIAN CHURCH OF LOS 19 ANGELES, et al.
20
21 v.
Plaintiffs,
22 NATIONAL SECURITY AGENCY, el a/.,
23
24
25
26
27
28
Defendants.
Case No: 3: 13-cv-03287 JSW
DECLARATION OF CINDY COHN
Courtroom II, 19th Floor The Honorable Jeffrey S. White
DECLARATION OF CINDY COHN
Case3:13-cv-03287-JSW Document86-1 Filed03/10/14 Page2 of 2
I, CINDY COHN, hereby declare:
2 1. I am a lawyer duly licensed to practice law in the State of California and before this
3 district. I am the Legal Director of the Electronic Frontier Foundation, counsel of record for the
4 plaintiffs.
5 2.
6 documents:
7
8
9
10
11
12
13
14
15
16
17
18
19
I have attached to this Declaration true and correct copies of the following
• Exhibit A: Complaint for Constitutional and Statutory Violations, Seeking
Damages, Declaratory and Injunctive Relief in Carolyn Jewel, et al., v. National
Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed September 18,2008;
• Exhibit B: First Amended Complaint for Constitutional and Statutory Violations,
Seeking Declaratory and Injunctive Reliefin First Unitarian Church of Los Angeles.
et al. v. National Security Agency. et al., Case No. 13-cv-3287-JSW (N.D. Cal.) filed
on March 7, 2014;
• Exhibit C: Evidence Preservation Order in Carolyn Jewel, et al., v. National
Security Agency, et al., No. 08-cv-4373-JSW (N.D. Cal.) filed November 16,2009;
• Exhibit D: Evidence Preservation Order in In Re: National Security Agency
Telecommunications Records Litigation, MOL No. 06-cv-1791-VRW (N.D. Cal)
dated November 6,2007; and
• Exhibit E: Emails between plaintiffs and defendants regarding preservation
20 issues.
21 I declare under penalty of perjury under the laws of the United States that the foregoing is
22 true and correct. Executed on March 10,2014, at San Francisco, California.
23
24
25
26
27
28
/s/ Cindy Cohn CINDY COHN
1 DECLARATION Of CINDY COHN
CASE NO. 13-cv-3287 JSW
Case3:l3-cv-03287-JSW Document86-2 Filed03/l0/l4 Pagel of 56
Exhibit A
Exhibit A
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page2of'56
1 ELECTRONIC FRONTIER FOUNDATION CINDY COHN (145997)
2 [email protected] LEE TIEN (148216)
3 KURT OP.SAHL (191303) KEVIN S. BANKSTON (217026)
4 JAMES S. TYRE (083117) 454 Shotwell Street
5 San Francisco, CA 94110 Telephone: 415/436-9333; Fax: 415/436-9993
6 RICHARD R. WIEBE (121156)
7 [email protected] LAW OFFICE OF RICHARD R. WIEBE
8 425 California Street, Suite 2025 San Francisco, CA 94104
9 Telephone: 415/433-3200; Fax: 415/433-6382
10 THOMAS E. MOORE III (115107) [email protected]
11 THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor
12 Palo Alto, CA 94301 Telephone: 650/798-5352; Fax: 650/798-5001
13 Attorneys for Plaintiffs
:' '. :-', ~:~ .. ~: ~ ; ~ : .~~
14
15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA -.'
16 CAROLYN JEWEL, T ASH HEPTING. GREGO~~ HIC~~ ) .~. CASE NO: ERIK KNUTZEN and JOICE WALTON, on be· f f t~.: f~)) (~ :'''''/ 6)
17 themselves and all others similarly situated, I V D - ' 18
19 vs.
Plaintiffs, ) ) ) ) )
20 NATIONAL SECURITY AGENCY and KEITH B. ) ALEXANDER, its Director. in his official and personal )
21 capacities; MICHAEL V. HAYDEN, in his personal capacity; ) the UNITED STATES OF AMERICA; GEORGE W. BUSH, )
22 President of the United States, in his official and personal ) capacities; RICHARD B. CHENEY, in his personal capacity; )
23 DA VID S. ADDINGTON, in his personal capacity; ) DEPARTMENT OF JUSTICE and MICHAEL B. )
24 MUKASEY, its Attorney General, in his official and personal )
CLASS ACTION
COMPLAINT FOR eRR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DAMAGES, DECLARATORY, AND INJUNCTIVE RELIEF
capacities; ALBERTO R. GONZALES, in his personal ) 25 capacity; JOHN D. ASHCROFT, in his personal capacity; ) DEMAND FOR JURY
JOHN M. MCCONNELL, Director of National Intelligence, in ) TRIAL 26 his official and personal capacities; JOHN D. NEGROPONTE, )
in his personal capacity; and DOES #1-100, inclusive, ) 27 )
)
-------------------------------------) Defendants.
28
COMPLAINT
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page3 of 56
I. Plaintiffs, on behalf of themselves and a class of similarly situated persons, bring th
2 action and allege upon personal knowledge and belief as to their own acts, and upon information a d
3 belief (based on the investigation of counsel) as to all other matters, as to which allegations Plainti s 4
believe substantial evidentiary support exists or will exist after a reasonable opportunity for further 5
investigation and discovery, as follows: 6
7
8 2.
PRELIMINARY STATEMENT
This case challenges an illegal and unconstitutional program of dragnet
9 communications surveillance conducted by the National Security Agency (the "NSA") and other
I 0 Defendants in concert with major telecommunications companies ("Defendants" is defined
II collectively as the named defendants and the Doe defendants as set forth in paragraphs 25 through
12 38 below).
13
14 3. This program of dragnet surveillance (the "Program"), first authorized by Executive
Order of the President in October of2001 (the "Program Order") and first revealed to the public in 15 16 December of2005, continues to this day.
17 4. Some aspects of the Program were publicly acknowledged by the President in
18 December 2005 and later described as the "terrorist surveillance program" ("TSP").
19 5. The President and other executive officials have described ttiESP's activities, which 20
were conducted outside the procedures of the Foreign Intelligence Surveillance Act ("FISA") and 21
without authorization by the Foreign Intelligence Surveillance Court ("FISC"), as narrowly targeti g 22 23 for interception the international communications of persons linked to Al Qaeda.
24 6. The Attorney General and the Director of National Intelligence have since publicly
25 admitted that the TSP was only one particular aspect of the surveillance activities authorized by th
26 Program Order.
27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page4 of 56
1 7. In addition to eavesdropping on or reading specific communications, Defendants
2 have indiscriminately intercepted the communications content and obtained the communications
3
4
5
6
7
8
9
records of millions of ordinary Americans as part of the Program authorized by the President.
8. The core component of the Program is Defendants' nationwide network of
sophisticated communications surveillance devices, attached to the key facilities of
telecommunications companies such as AT&T that carry Americans' Internet and telephone
communications.
9. Using this shadow network of surveillance devices, Defendants have acquired and
continue to acquire the content ofa significant portion of the phone calls, emails, instant messages, 10 11 text messages, web communications and other communications, both international and domestic,
12 of practically every American who uses the phone system or the Internet, including Plaintiffs and
13 class members, in an unprecedented suspicionless general search through the nation's
14 communications networks.
15
16
17
10. In addition to using surveillance devices to acquire the domestic and international
communications content of millions of ordinary Americans, Defendants have unlawfully solicited
and obtained from telecommunications companies such as AT&T the complete and ongoing 18
19 disclosure of the private telephone and Internet transactional records of those companies' millions
20 of customers (including communications records pertaining to Plaintiffs and class members),
21 communications records indicating who the customers communicated with, when and for how Ion ,
22 among other sensitive information.
23
24 11. This non-content transactional information is analyzed by computers in conjunction
with the vast quantity of communications content acquired by Defendants' network of surveillance 25 26 devices, in order to select which communications are subjected to personal analysis by staff of the
27 NSA and other Defendants, in what has been described as a vast "data-mining" operation.
28
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page5 of 56
12. Plaintiffs and class members are ordinary Americans who are current or former
2 subscribers to AT&T's telephone and/or Internet services.
3 13. Communications of Plaintiffs and class members have been and continue to be
4 illegally acquired by Defendants using surveillance devices attached to AT&T's network, and
5 Defendants have illegally solicited and obtained from AT&T the continuing disclosure of private
6 communications records pertaining to Plaintiffs and class members. Plaintiffs' communications or
7 activities have been and continue to be subject to electronic surveillance.
8 14. Plaintiffs are suing Defendants to enjoin their unlawful acquisition of the
9 communications and records of Plaintiffs and class members, to require the inventory and
10 destruction of those that have already been seized, and to obtain appropriate statutory, actual, and
11 punitive damages to deter future illegal surveillance.
12
13 15.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over the federal claims pursuant to 28
14 U.S.C. § 1331, 18 U.S.C. § 2712, and 5 U.S.C. § 702.
15
16
17
16. Plaintiffs are infonned, believe and thereon allege that Defendants have sufficient
contacts with this district generally and, in particular, with the events herein alleged, that Defendan s
are subject to the exercise of jurisdiction of this court over the person of such Defendants and that 18 19 venue is proper in this judicial district pursuant to 28 U .S.C. § 1391.
20 17. Plaintiffs are informed, believe and thereon allege that a substantial part of the even
21 giving rise to the claims herein alleged occurred in this district and that Defendants and/or agents
22 of Defendants may be found in this district.
23
24
25
26
27
28
18. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
omissions giving rise to this lawsuit occurred in this district and division.
19. Plaintiffs have fully complied with the presentment of claim provisions of28 U.S.C
§ 2675, as required for their claims under 18 U.S.C. § 2712. Plaintiffs timely served notice of their
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page6 of 56
claims on the NSA and the Departmcnt of Justice on December 19, 2007, and over six months hav
2 passed since the filing of that notice.
3
4
5
6
PARTIES
20. Plaintiff Tash Hepting, a senior systcms architect, is an individual residing in
Livermore, California. Hepting has been a subscriber and user of AT&T's residential long distanc
telephone service since at least June 2004. 7
8 21. Plaintiff Gregory Hicks is an individual residing in San Jose, California. Hicks, a
9 retired Naval Officer and systems engineer, has been a subscriber and user of AT&T's residential
10 long distance telephone service since February 1995.
11
12
13
14
15
22. Plaintiff Carolyn Jcwel is an individual residing in Petaluma, California. Jewel, a
database administrator and author, has been a subscriber and user of AT&T's WoridNet dial-up
Internet service since approximately June 2000.
23. Plaintiff Erik Knutzen is an individual residing in Los Angeles, CaliforniaKnutzen,
16 a photographer and land use researcher, was a subscriber and user of AT&T's WorldNet dial-up
17 Internet service from at least October 2003 until May 2005. Knutzen is currently a subscriber and
18 user of AT&T's High Speed Internet DSL service.
19 24. Plaintiff Joice Walton is an individual residing in San Jose, California. Walton, a
20 high technology purchasing agent, is a current subscriber and user of AT&T's WorldNet dial-up
21 Internet service. She has subscribed to and used this service since around April 2003. 22 25. Defendant National Security Agency (NSA) is an agency under the direction and
23 control of the Department of Defense that collects, processes and disseminates foreign signals
24 intelligence. It is responsible for carrying out the Program challenged herein. 25 26. Defendant Lieutenant General Keith B. Alexander is the current Director of the NS ,
26 in office since April 2005. As NSA Director, defendant Alexander has ultimate authority for
27 supervising and implementing all operations and functions of the NSA, including the Program. 28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page7 of 56
27. Defendant Lieutenant General (Ret.) Michael V. Hayden is the former Director of
2 the NSA, in office from March 1999 to April 2005. While Director, Defendant Hayden had ultima e
3 authority for supervising and implementing all operations and functions of the NSA, including the
4 Program.
5 28. Defendant United States is the United States of America, its departments, agencies,
6 and entities.
29. Defendant George W. Bush is the current President of the United States, in office 7
8
9 since January 200 I. Mr. Bush authorized and continues to authorize the Program.
IO 30. Defendant Richard B. Cheney is the current Vice President of the United States, in
office since January 200 I. Defendant Cheney was personally involved in the creation, developme t II
and implementation of the Program. 12
13 31. Defendant David S. Addington is currently the chief of staff to Defendant Cheney,
in office since October 2005. Previously, Defendarm.ddington served as legal counsel to the Office 14
of the Vice President. DefendantAddington was personally involved in the creation, development 15
and implementation of the Program. On information and belief, Defendant Addington drafted the 16
documents that purportedly authorized the Program. 17
18 32. Defendant Department of Justice is a Cabinet-level executive department in the
United States government charged with law enforcement, defending the interests of the United Sta s 19
according to the law, and ensuring fair and impartial administration of justice for all Americans. 20
33. Defendant Michael B.Mukasey is the current Attorney General of the United States, 21
in office since November 2007. As Attorney General, DefendanMukasey approves and authorizes 22
the Program on behalf of the Department of Justice. 23
34. Defendant Alberto R. Gonzales is the fonner Attorney General of the United States, 24 25 in office from February 2005 to September 2007, and also served as White House Counsel to
26 President George W. Bush from January 2001 to February 2005. Defendant Gonzales was
27 personally involved in the creation, development and implementation of the Program. As Attorne
28
Case3:13-cv-032S7-JSW DocumentS6-2 Filed03/10/14 PageS of 56
1 General, Defendant Gonzales authorized and approved the Program on behalf of the Department 0
2 Justice.
3
4
5
35. Defendant John D. Ashcroft is the fonner Attorney General of the United States, in
office from January 2001 to February 2005. As Attorney General, Defendant Ashcroft authorized
and approved the Program on behalf of the Department of Justice. 6
7 36. Defendant Vice Admiral (Ret.) John M. McConnell is the Director of National
8 Intelligence ("DNI"), in office since February 2007. Defendant McConnell has authority over the
9 activities of the U.S. intelligence community. including the Program.
10 37. Defendant John D. Negroponte was the first Director of National Intelligence, in
11 office from Apri12005 to February 2007. As DNI. Defendant Negroponte had authority over the
12 activities of the U.S. intelligence community. including the Program.
13 38. At all times relevant hereto, Defendants Doe Nos. 1-100, inclusive (the "Doe
14 defendants"), whose actual names Plaintiffs have been unable to ascertain notwithstanding
15 reasonable efforts to do so, but who are sued herein by the fictitious designation "Doe # 1" through
16 "Doe # 100," were agents or employees of the NSA, the DOJ, the White House, or were other
17 government agencies or entities or the agents or employees of such agencies or entities, who
18 authorized or participated in the Program. Plaintiffs will amend this complaint to allege their true
19 names and capacities when ascertained. Upon infonnation and belief each fictitiously named
20 Defendant is responsible in some manner for the occurrences herein alleged and the injuries to
21 Plaintiffs and class members herein alleged were proximately caused in relation to the conduct of
22 Does 1-100 as well as the named Defendants.
23
24
25 39.
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
THE PRESIDENT'S AUTHORIZATION OF THE PROGRAM
On October 4,2001, President Bush, in concert with White House Counsel Gonzale ,
26 NSA Director Hayden, Attorney General Ashcroft and other Defendants, issued a secret presidenti' I
27 order (the "Program Order") authorizing a range of surveillance activities inside of the United Stat s
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page9 of 56
without statutory authorization or court approval, including electronic surveillance of Americans'
2 telephone and Internet communications (the "Program").
3 40. This Program of surveillance inside the United States began at least by October 6,
4 2001, and continues to this day.
5 41. The President renewed and, on information and belief, renews his October 4, 200 I
6 order approximately every 45 days.
7 42. The Program of domestic surveillance authorized by the President and conducted b
8 Defendants required and requires the assistance of major telecommunications companies such as
9 AT&T, whose cooperation in the Program was and on information and belief is obtained based on
10 periodic written requests from Defendants and/or other government agents indicating that the
II President has authorized the Program's activities, and/or based on oral requests from Defendants
12 and/or other government agents.
13 43. The periodic written requests issued to colluding telecommunications companies,
14 including AT&T, have stated and on information and belief do state that the Program's activities
15 have been determined to be lawful by the Attorney General, except for one period of less than six
16 days.
17 44. On information and belief, at some point prior to March 9,2004, the Department of
18 Justice concluded that certain aspects of the Program were in excess of the President's authority an
19 in violation of criminal law.
20 45. On Tuesday, March 9,2004, Acting Attorney General James Corney advised the
21 Administration that he saw no legal basis for certain aspects of the Program. The then-current
22 Program authorization was set to expire March II, 2004.
23 46. On Thursday, March 11,2004, the President renewed the Program Order without a
24 certification from the Attorney General that the conduct it authorized was lawful.
25 47. On information and belief, the March 11 Program Order instead contained a
26 statement that the Program's activities had been determined to be lawful by Counsel to the Preside t
27 Alberto Gonzales, and expressly claimed to override the Department of Justice's conclusion that th
28
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Pagel0 of 56
1 Program was unlawful as well as any act of Congress or judicial decision purporting to constrain
2 President's power as commander in chief.
3 48. For a period of less than sixty days, beginning on or around March II, 2004, writte
4 requests to the telecommunications companies asking for cooperation in the Program stated that th
5 Counsel to the President, rather than the Attorney General, had detennined the Program's activitie
6 to be legal.
7 49. By their conduct in authorizing, supervising, and implementing the Program,
8 Defendants, including the President, the Vice-President, the Attorneys General and the Directors 0
9 NSA since October 2001, the Directors of National Intelligence since 2005 and the Doe defendants
10 have aided, abetted, counseled, commanded, induced or procured the commission of all Program
II activities herein alleged, and proximately caused all injuries to Plaintiffs herein alleged.
12 THE NSA'S DRAGNET INTERCEPTION OF COMMUNICATIONS TRANSMITTED THROUGH AT&T FACILITIES
13
14
15
16
17
18
50. AT&T is a provider of electronic communications services, providing to the public
the ability to send or receive wire or electronic communications.
51. AT&T is also a provider of remote computing services, providing to the public
computer storage or processing services by means of an electronic communications system.
52. Plaintiffs and class members are, or at pertinent times were, subscribers to and/or
customers of AT&T's electronic communications services and/or computer storage or processing 19
20 services.
21 53. AT&T maintains domestic telecommunications facilities over which millions of
22 Americans' telephone and Internet communications pass every day.
23 54. These facilities allow for the transmission of interstate and/or foreign electronic voi e
24 and data communications by the aid of wire, fiber optic cable, or other like connection between the
25 point of origin and the point of reception.
26 55. One of these AT&T facilities is located at on Folsom Street in San Francisco, CA
27 (the "Folsom Street Facility").
28
Case3:l3-cv-03287-JSW Document86-2 Filed03/l0/l4 Pagell of 56
56. The Folsom Street Facility contains a "4ESS Switch Room." A 4ESS switch is a
2 type of electronic switching system used to route long-distance telephone communications transi .
3 through the facility.
4 57. The Folsom Street Facility also contains a "WorldNet Internet Room" containing
5 large routers, racks of modems for AT&T customers' WorldNet dial-up services, and other
6 telecommunications equipment through which wire and electronic communications to and from
7 AT&T's dial-up and DSL Internet service subscribers, including emails, instant messages, Voice-
8 Over-Internet-Protocol ("VOIP") conversations and web browsing requests, are transmitted.
9 58. The communications transmitted through the WorldNet Internet room are carried as
10 light signals on fiber-optic cables that are connected to routers for AT&T's WorldNet Internet
II service and arc a part of AT&T's Common Backbone Internet network ("CBB"), which comprises
12 a number of major hub facilities such as the Folsom Street Facility that are connected by a mesh 0
13 high-speed fiber optic cables and that are used for the transmission of interstate and foreign
14 communications.
15 59. The WoridNet Internet Room is designed to route and transmit vast amounts of
16 Internet communications that are "peered" by AT&T between AT&T's CBB and the networks of
17 other carriers, such asConXion, Verio, XO,Genuity. Qwest. PAIX.Allegieance,Abovenet, Global
18 Crossing. C&W, UUNET, Level 3, Sprint,Telia. PSINet. and MAE-West. "Peering" is the process
19 whereby Internet providers interchange traffic destined for their respective customers, and for
20 customers of their customers.
21 60. Around January 2003, the NSA designed and implemented a program in
22 collaboration with AT&T to build a surveillance operation at AT&T's Folsom Street Facility, insi
23 a secret room known as the "S03 Secure Room".
24 61. The SG3 Secure Room was built adjacent to the Folsom Street Facility's 4ESS
25 switch room.
26 62. An AT&T employee cleared and approved by the NSA was charged with setting up
27 and maintaining the equipment in the SG3 Secure Room, and access to the room was likewise
28 controlled by those NSA-approved AT&T employees.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page12 of 56
63. The S03 Secure Room contains sophisticated computer equipment, including a
2 device know as aNarus Semantic Traffic Analyzer (the Narus ST A"), which is designed to analyze
3 large volumes of communications at high speed, and can be programmed to analyze the contents a d
4 traffic patterns of communications according to user-defined rules.
5 64. By early 2003, AT&T-under the instruction and supervision of the NSA-had
6 connected the fiber-optic cables used to transmit electronic and wire communications through the
7 WorldNet Internet Room to a "splitter cabinet" that intercepts a copy of all communications
8 transmitted through the WorldNet Internet Room and diverts copies of those communications to th
9 equipment in the S03 Secure Room. (Hereafter, the technical means used to receive the diverted
10 communications will be referred to as the "Surveillance Configuration.")
II 65. The equipment in the S03 Secure Room is in tum connected to a private high-spee
12 backbone network separate from the CBB (the "S03 Network").
13 66. NSA analysts communicate instructions to the S03 Secure Room's equipment,
14 including theNarus STA, using the S03 Network, and the S03 Secure Room's equipment transmit
15 communications based on those rules back to NSA personnel using the S03 Network.
16 67. The NSA in cooperation with AT&T has installed and is operating a nationwide
17 network of Surveillance Configurations in AT&T facilities across the country, connected to the SO
18 Network.
19 68. This network of Surveillance Configurations includes surveillance devices installed
20 at AT&T facilities in Atlanta, OA; Bridgeton, MO; Los Angeles, CA; San Diego, CA; San Jose C
21 and/or Seattle, W A.
22 69. Those Surveillance Configurations divert all peered Internet traffic transiting those
23 facilities into S03 Secure Rooms connected to the secure S03 Network used by the NSA, and
24 information of interest is transmitted from the equipment in the S03 Secure Rooms to the NSA
25 based on rules programmed by the NSA.
26 70. This network of Surveillance Configurations indiscriminately acquires domestic
27 communications as well as international and foreign communications.
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page13 of 56
1 71. This network of Surveillance Configurations involves considerably more locations
2 than would be required to capture the majority of international traffic.
3 72. This network of Surveillance Configurations acquires over half of AT&T's purely
4 domestic Internet traffic, representing .almost all of the AT&T traffic to and from other providers,
5 and comprising approximately 10% of all purely domestic Internet communications in the United
6 States, including those of non-AT&T customers.
7 73. Through this network of Surveillance Configurations and/or by other means,
8 Defendants have acquired and continue to acquire the contents of domestic and international wire
9 and/or electronic communications sent and/or received by Plaintiffs and class members, as well as
10 non-content dialing, routing, addressing and/or signaling information pertaining to those
11 communications.
12 74. In addition to acquiring all of the Internet communications passing through a numb
13 of key AT&T facilities, Defendants and AT&T acquire all or most long-distance domestic and
14 international phone calls to or from AT&T long-distance customers, including both the content of
15 those calls and dialing, routing, addressing and/or signaling information pertaining to those calls,
16 by using a similarly nationwide network of surveillance devices attached to AT&T's long-distance
17 telephone switching facilities, and/or by other means.
18 75. The contents of communications to which Plaintiffs and class members were a p
19 and dialing, routing, addressing, and/or signaling information pertaining to those communications,
20 were and are acquired by Defendants in cooperation with AT&T by using the nationwide network 21
22
23
of Surveillance Configurations, and/or by othcr means.
76. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d
class members' communications contents and non-content information is done without judicial, 24
statutory, or other lawful authorization, in violation of statutory and constitutional limitations, and 25
in excess of statutory and constitutional authority. 26
77. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' 27 28 and class members' communications contents and non-content information is done without
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page14 of 56
1 probable cause or reasonable suspicion to believe that Plaintiffs or class members have
2 committed or are about to commit any crime or engage in any terrorist activity.
3 78. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' d 4
class members' communications contents and non-content infonnation is done without probable 5
cause or reasonable suspicion to believe thaPlaintiffs or class member.are foreign powers or agents
6 thereof.
7 79. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d 8 class members' communications contents and non-content infonnation is donewithout any reason
9 to believe that the infonnation is relevant to an authorized criminal investigation or to an authorize
10 investigation to protect against international terrorism or clandestine intelligence activities.
11
12
13
80. Defendants' above-described acquisition in cooperation with AT&T of Plaintiffs' a d
class members' communications contents and non-content infonnation was directly perfonned,
and/or aided, abetted, counseled, commanded, induced or procured, by Defendants. 14
15 81. On infonnation and belief, Defendants will continue to directly acquire. and/or aid,
16 abet, counsel, command, induce or procure the above-described acquisition in cooperation with
17 AT&T, the communications contents and non-content infonnation of Plaintiffs and class members.
18
19
20
THE NSA'S DRAGNET COLLECTION OF COMMUNICATIONS RECORDS FROM AT&T DATABASES
82. Defendants have since October 200 I continuously solicited and obtained the
21 disclosure of all infonnation in AT&T's major databases of stored telephone and Internet records,
22 including up-to-the-minute updates to the databases that are disclosed in or near real-time.
23 83. Defendants have solicited and obtained from AT&T records concerning
24 communications to which Plaintiffs and class members were a party, and continue to do so. 25
26 84. In particular, Defendants have solicited and obtained the disclosure of infonnation
managed by AT&T's "Daytona" database management technology, which includes records 27 28 concerning both telephone and Internet communications. and continues to do so.
Case3:l3-cv-03287-JSW Document86-2 Filed03/l0/l4 Pagel5 of 56
1 85. Daytona is a database management technology designed to handle very large
2 databases and is used to manage "Hawkeye," AT&T's call detail record ("CDR") database, which
3 contains records of nearly every telephone communication carried over its domestic network since
4
5 approximately 2001, records that include the originating and terminating telephone numbers and th
time and length for each call. 6
7 86. The Hawkeye CDR database contains records or other information pertaining to
8 Plaintiffs' and class members' use of AT&T's long distance telephone service and dial-up Internet
9 service.
10
II
12
13
87. As of September 2005, all of the CDR data managed by Daytona, when
uncompressed, totaled more than 312 terabytes.
88. Daytona is also used to manage AT&T's huge network-security database, known as
"Aurora," which has been used to store Internet traffic data since approximately 2003. The Aurora 14
15 database contains huge amounts of data acquired by flrewalls, routersponeypots and other devices
16 on AT&T's global IP (Internet Protocol) network and other networks connected to AT&T's netwo k.
17 89. The Aurora database managed by Daytona contains records or other information
18 pertaining to Plaintiffs' and class members' use of AT&T's Internet services.
19
20
21
22
23
24
25
90. Since October 6, 2001 or shortly thereafter, Defendants have continually solicited
and obtained from AT&T disclosure of the contents of the Hawkeye and Aurora communications
records databases andlor other AT&T communications records, including records or other
information pertaining to Plaintiffs' and class members' use of AT&T's telephone and Internet
services.
91. The NSA andlor other Defendants maintain the communications records disclosed
by AT&T in their own database or databases of such records. 26
27 92. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
28 and class members' communications records, and its receipt of such disclosure, is done without
Case3:l3-cv-03287-JSW Document86-2 Filed03/l0/l4 Page16 of 56
I judicial, statutory, or other lawful authorization, in violation of statutory and constitutional
2 limitations, and in excess of statutory and constitutional authority.
3 93. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
4 and class members' communications records, and its receipt of such disclosure, is done without
5 probable cause or reasonable suspicion to believe that Plaintiffs' or class members have 6
7
8
committed or are about to commit any crime or engage in any terrorist activity.
94. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
and class members' communications records, and its receipt of such disclosure, is done without 9
probable cause or reasonable suspicion to believe that Plaintiffs' or class members are foreign 10
II
12
powers or agents thereof.
95. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
and class members' communications records, and its receipt of such disclosure, is domvithout any 13
14
15
16
17
reason to believe that the information is relevant to an authorized criminal investigation or to an
authorized investigation to protect against international terrorism or clandestine intelligence
activities.
96. Defendants' above-described solicitation of the disclosure by AT&T of Plaintiffs'
18 and class members' communications records, and its receipt of such disclosure, is directly
19 performed, and/or aided, abetted, counseled, commanded, induced or procured, by Defendants.
20 97. On information and belief, Defendants will continue to directly solicit and obtain
21 AT&T's disclosure of its communications records, including records pertaining to Plaintiffs and
22 class members, and/or will continue to aid, abet, counsel, command, induce or procure that conduc .
CLASS ACTION ALLEGATIONS 23
24
25 98. Pursuant to Federal Rules of Civil Procedure, Rule 23(b )(2), Plaintiffs Hepting,
Hicks, Jewel, Knutzen, and Walton bring this action on behalf of themselves and a class of similarl 26 27 situated persons defined as:
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page17 of 56
I All individuals in the United States that are current residential subscribers or customers of AT&T's telephone services or Internet services, or that were residential
2 telephone or Internet subscribers or customers at any time after September 200 I.
3 99. The class seeks certification of claims for declaratory, injunctive and other equitabl
4 relief pursuant to 18 U.S.C. §2520, 18 U.S.C. §2707 and 5 U.S.C. § 702, in addition to declaratory
5 and injunctive relief for violations of the First and Fourth Amendments. Members of the class 6
7 expressly and personally retain any and all damages claims they individually may possess arising
out of or relating to the acts, events, and transactions that form the basis of this action. The 8 9 individual damages claims of the class members are outside the scope of this class action.
10 100. Excluded from the class are the individual Defendants, all who have acted in active
11 concert and participation with the individual Defendants, and the legal representatives, heirs,
12 successors, and assigns of the individual Defendants.
13
14
15
101. Also excluded from the class are any foreign powers, as defined by 50 U.S.C.
§ 1801(a), or any agents of foreign powers, as defined by 50 U.S.C. § 1801(b)(I)(A), including
without limitation anyone who knowingly engages in sabotage or international terrorism, or 16 17 activities that are in preparation therefore.
18 102. This action is brought as a class action and may properly be so maintained pursuant
19 to the provisions of the Federal Rules of Civil Procedure, Rule 23. Plaintiffs reserve the right to
20 modify the class defmition and the class period based on the results of discovery. 21
22
23
103. Numerosity of the Class: Members of the class are so numerous that their
individual joinder is impracticable. The precise numbers and addresses of members of the class ar
unknown to the Plaintiffs. Plaintiffs estimate that the class consists of millions of members. The 24
25 precise number of persons in the class and their identities and addresses may be ascertained from
26 Defendants' and AT&T's records.
27
28
Case3:l3-cv-03287-JSW Document86-2 Filed03/l0/l4 Page18 of 56
104. Existence of Common Questions of Fact and Law: There is a well-defined
2 community of interest in the questions of law and fact involved affecting the members of the class.
3 These common legal and factual questions include: 4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
(a) Whether Defendants have violated the First and Fourth Amendment rights 0
class members, or are currently doing so;
(b) Whether Defendants have SUbjected class members to electronic surveillanc ,
or have disclosed or used information obtained by electronic surveillance of the class members, in
violation of 50 U.S.C. § 1809, or are currently doing so;
(c) Whether Defendants have intercepted, used or disclosed class members'
communications in violation of 18 U.S.C. § 2511, or arc currently doing so;
(d) Whether Defendants have solicited and obtained the disclosure of the
contents of class members' communications in violation of 18 U.S.C. § 2703(a) or (b), or are
currently doing so;
(e) Whether Defendants have solicited or obtained the disclosure of non-con ten
records or other information pertaining to class members in violation of 18 U.S.C. § 2703(c), or ar
currently doing so;
(t) Whether Defendants have violated the Administrative Procedures Act,S
U.S.C. §§ 701 e/ seq., or are currently doing so;
(g) Whether the Defendants have violated the constitutional principle of
separation of powers, or are currently doing so;
(h) Whether Plaintiffs and class members are entitled to injunctive, declaratory,
and other equitable relief against Defendants;
(i) Whether Plaintiffs and class members are entitled to an award of reasonable
attorneys' fees and costs of this suit.
105. Typicality: Plaintiffs' claims are typical of the claims of the members of the class
because Plaintiffs are or were subscribers to the Internet and telephone services of Defendants. 27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page19 of 56
I Plaintiffs and all members of the class have similarly suffered harm arising from Defendants'
2 violations oflaw, as alleged herein.
3
4
5
106. Adequacy. Plaintiffs are adequate representatives of the class because their interest
do not conflict with the interests of the members of the class they seek to represent. Plaintiffs have
retained counsel competent and experienced in complex class action litigation and Plaintiffs intend 6 7 to prosecute this action vigorously. Plaintiffs and their counsel will fairly and adequately protect
8 the interests of the members of the class.
9 107. This suit may be maintained as a class action pursuant to Federal Rules of Civil
10 Procedure, Rule 23(b)(2) because Plaintiffs and the class seek declaratory and injunctive relief, an
11 all of the above factors of numerosity, common questions of fact and law, typicality and adequacy
12
13 are present. Moreover, Defendants have acted on grounds generally applicable to Plaintiffs and th
class as a whole, thereby making declaratory and/or injunctive relief proper. 14
15
16
COUNT I
Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief
17 (Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his
18 official and personal capacities), Mukasey (in his official and personal capacities), McConnell (in his official and personal capacities), and one or more of the Doe Defendants)
19
20 108. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
21 paragraphs of this complaint, as ifset forth fully herein.
22 109. Plaintiffs and class members have a reasonable expectation of privacy in their
23 communications, contents of communications, and/or records pertaining to their communications
24 transmitted, collected, and/or stored by AT&T. 25
26 110. Defendants have directly performed, or aided, abetted, counseled, commanded,
induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in, 27 28 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commissio
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page20 of 56
1 of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of
2 Plaintiffs' and class members' communications, contents of communications, and records pertaini
3 to their communications transmitted, collected, and/or stored by AT&T, without judicial or other 4
5 lawful authorization, probable cause, and/or individualized suspicion, in violation of statutory and
constitutional limitations, and in excess of statutory and constitutional authority. 6
7 111. AT&T acted as the agent of Defendants in performing, participating in, enabling,
8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti ,
9 interception, disclosure, divulgence and/or use of Plaintiffs' and class members' communications,
10 contents of communications, and records pertaining to their communications transmitted, collected
II and/or stored by AT&T, without judicial or other lawful authorization, probable cause, and/or
12
13
14
individualized suspicion.
112. At all relevant times, Defendants committed, knew of and/or acquiesced in all ofth
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs and class
16 members by obtaining judicial or other lawful authorization and by conforming their conduct to th
17 requirements of the Fourth Amendment.
18
19
20
21
113. By the acts alleged herein, Defendants have violated Plaintiffs' and class members'
reasonable expectations of privacy and denied Plaintiffs and class members their right to be free
from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constituti n
22 of the United States.
23 114. By the acts alleged herein, Defendants' conduct has proximately caused harm to
24 Plaintiffs and class members.
25 115. Defendants' conduct was done intentionally, with deliberate indifference, or with
26
27
28
reckless disregard of, Plaintiffs' and class members' constitutional rights.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page21 of 56
1 116. On information and belief, the Count I Defendants are now engaging in and will
2 continue to engage in the above-described violations of Plaintiffs' and class members' constitution I
3 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class 4
5 members have no adequate remedy at law for the Count I Defendants' continuing unlawful conduc ,
and the Count I Defendants will continue to violate Plaintiffs' and class members' legal rights unle s 6 7 enjoined and restrained by this Court.
8 117. Plaintiffs seek that this Court declare that Defendants have violated their rights and
9 the rights of the class; enjoin the Count I Defendants, their agents, successors, and assigns, and all
10 those in active concert and participation with them from violating the Plaintiffs' and class membe '
11 rights under the Fourth Amendment to the United States Constitution; and award such other and
12
13
14
15
further equitable relief as is proper.
COUNT II
Violation of Fourth Amendment-Damages
16 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
17 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConneU (in his personal capacity), Negroponte (in his personal
18 capacity), and one or more of the Doe Defendants)
19 118. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
20 paragraphs of this complaint, as if set forth fully herein.
21
22
23
119. Plaintiffs have a reasonable expectation of privacy in their communications, content
of communications, and/or records pertaining to their communications transmitted, collected, and/ r
24 stored by AT&T.
25 120. Defendants have directly performed, or aided, abetted, counseled, commanded,
26 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
27 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page22 of 56
of the above-described acts of acquisition, interception, disclosure, divulgence and/or use of
2 Plaintiffs' communications, contents of communications, and records pertaining to their
3 communications transmitted, collected, and/or stored by AT&T without judicial or other lawful 4
5 authorization, probable cause, and/or individualized suspicion, in violation of statutory and
constitutional limitations, and in excess of statutory and constitutional authority. 6
7 121. AT&T acted as the agent of Defendants in performing, participating in, enabling,
8 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti ,
9 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of
10 communications, and records pertaining to their communications transmitted, collected, and/or
II stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d
12
13
14
suspicion.
122. At all relevant times, Defendants committed, knew of and/or acquiesced in all ofth
15 above-described acts, and failed to respect the Fourth Amendment rights of Plaintiffs by obtaining
16 judicial or other lawful authorization and conforming their conduct to the requirements of the Fou
17 Amendment.
18 123. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable 19
expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and 20
seizures as guaranteed by the Fourth Amendment to the Constitution of the United States. 21
22 124. By the acts alleged herein, Defendants' conduct has proximately caused harm to
23 Plaintiffs.
24 125. Defendants' conduct was done intentionally, with deliberate indifference, or with
25 reckless disregard of, Plaintiffs' constitutional rights.
26
27
28
126. Plaintiffs seek an award of their actual damages and punitive damages against the
Count II Defendants, and such other or further relief as is proper.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page23 of 56
COUNT III
2 Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief
3
4
(Named Plaintiffs and Class vs. Defendants United States, National Security Agency, Department of Justice, Bush (in his official and personal capacities), Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and
5 McConnell (in his official and personal capacities), and one or more of the Doe Defendants)
6 127. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
7 paragraphs of this complaint, as ifset forth fully herein.
8
9
10
11
128. Plaintiffs and class members use AT&T's services to speak or receive speech
anonymously and to associate privately.
129. Defendants directly performed, or aided, abetted, counseled, commanded, induced,
procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled, 12 13 contributed to, facilitated, directed, controllcd, assisted in, or conspired in the commission of the
14 above-described acts of acquisition, interception, disclosure, divulgence and/or use of Plaintiffs' a
15 class members' communications, contents of communications, and records pertaining to their
16 communications without judicial or other lawful authorization, probable cause, and/or individualiz d
17 suspicion, in violation of statutory and constitutional limitations, and in excess of statutory and
18
19
20
constitutional authority.
130. AT&T acted as the agent of Defendants in performing, participating in, enabling,
21 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti ,
22 interception, disclosure, divulgence and/or use of Plaintiffs' communications, contents of
23 communications, and records pertaining to their communications transmitted, collected, and/or
24 stored by AT&T without judicial or other lawful authorization, probable cause, and/or individualiz d 25
26
27
suspIcion.
131. By the acts alleged herein, Defendants violated Plaintiffs' and class members' right
28 to speak and to receive speech anonymously and associate privately under the First Amendment.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page24 of 56
132. By the acts alleged herein, Defendants' conduct proximately caused harm to
2 Plaintiffs and class members.
3
4
5
6
133. Defendants' conduct was done intentionally, with deliberate indifference, or with
reckless disregard of, Plaintiffs' and class members' constitutional rights.
134. On information and belief, the Count III Defendants are now engaging in and will
7 continue to engage in the above-described violations of Plaintiffs' and class members' constitution I
8 rights, and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
9 members have no adequate remedy at law for the Count III Defendants' continuing unlawful
10 conduct, and the Count III Defendants will continue to violate Plaintiffs' and class members' legal
11 rights unless enjoined and restrained by this Court. 12
13 135. Plaintiffs seek that this Court declare that Defendants have violated their rights and
the rights of the class; enjoin the Count III Defendants, their agents, successors, and assigns, and al 14 15 those in active concert and participation with them from violating the Plaintiffs' and class membe '
16 rights under the First Amendment to the United States Constitution; and award such other and
17 further equitable relief as is proper.
18 COUNT IV 19
20
21
22
23
24
Violation of First Amendment-Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more ofthe Doe Defendants)
136. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
25 paragraphs of this complaint, as ifset forth fully herein.
26 137. Plaintiffs use AT&T's services to spcak or receive speech anonymously and to
27 associate privately.
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page25 of 56
1 138. Defendants directly perfonned, or aided, abetted, counseled, commanded, induced,
2 procured, encouraged, promoted, instigated, advised, willfully caused, participated in, enabled,
3 contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission of the 4
5 above-described acts of acquisition, interception, disclosure, divulgence andlor use of Plaintiffs'
communications, contents of communications, and records pertaining to their communications 6 7 without judicial or other lawful authorization, probable cause, andlor individualized suspicion, in
8 violation of statutory and constitutional limitations, and in excess of statutory and constitutional
9 authority.
10 139. By the acts alleged herein, Defendants violated Plaintiffs' rights to speak and receiv
11 speech anonymously and associate privately under the First Amendment.
12 140. By the acts alleged herein, Defendants' conduct proximately caused hann to
13
14 Plaintiffs.
15 141. Defendants' conduct was done intentionally, with deliberate indifference, or with
16 reckless disregard of, Plaintiffs' constitutional rights.
17 142. Plaintiffs seek an award of their actual damages and punitive damages against the
18 Count IV Defendants, and for such other or further relief as is proper.
19
20
21
22
23
24
25
26
27
28
COUNT V
Violation of Foreign Intelligence Surveillance Act-Declaratory, Injunctive and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
and personal capacities), and one or more of the Doe Defendants)
143. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin
paragraphs of this complaint, as ifset forth fully herein.
144. In relevant part, 50 U.S.C. § 1809 provides that:
(a) Prohibited activities-A person is guilty of an offense if he intentionaIly-( 1) engages in electronic surveillance under color of law
2
3
4
5
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page26 of 56
except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; or (2) discloses or uscs information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
6 145. In relevant part 50 U.S.C. § 1801 provides that:
7
8
9
10
II
12
13
14
15
16
17
18
19
(1) "Electronic surveillance" means - (I) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a partiCUlar, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, ifsuch acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
20 146. 18 U.S.C. § 2511(2)(1) further provides in relevant part that "procedures in this
21 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be theexclusive
22
23 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
and the interception of domestic wire, oral, and electronic communications may be conducted." 24 25 (Emphasis added.)
26 147. 50 U.S.C. § 1812 further provides in relevant part that:
27
28
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which
1
2
3
4
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page27 of 56
electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
5 (Emphasis added.)
6 148. Defendants intentionally acquired, or aided, abetted, counseled, commanded,
7 induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
8 enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in the commission 9
10
II
of such acquisition, by means of a surveillance device, the contents of one or more wire
communications to or from Plaintiffs and class members or other information in which Plaintiffs 0
12 class members have a reasonable expectation of privacy, without the consent ofany party thereto,
13 and such acquisition occurred in the United States.
14 149. AT&T acted as the agent of Defendants in performing, participating in, enabling,
15 contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti n
16 of Plaintiffs' communications.
17
18 ISO. By the acts alleged herein, Defendants acting in excess of their statutory authority
and in violation of statutory limitations have intentionally engaged in, or aided, abettcd, counseled, 19 20 commanded, induced, procured, encouraged, promoted, instigated, advised, willfully caused,
21 participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in
22 the commission of, electronic surveillance (as defined by 50 U.S.C. § 180I(t) under color of law,
23 not authorized by any statute, to which Plaintiffs and class members were subjected in violation of 24
25
26
50 U.S.C. § 1809.
151. Additionally or in the alternative, by the acts alleged herein, Defendants acting in
27 excess of their statutory authority and in violation of statutory limitations have intentionally
28 disclosed or used information obtained under color of law by electronic surveillance, knowing or
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page28 of 56
1 having reason to know that the information was obtained through electronic surveillance not
2 authorized by statute, including information pertaining to Plaintiffs and class members, or aided,
3 abetted, counseled, commanded, induced, procured, encouraged, promotcd, instigated, advised, 4
5 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
or conspired in the commission of such acts. 6
7 152. Defendants did not notify Plaintiffs or class members of the above-described
8 electronic surveillance, disclosure, andlor use, nor did Plaintiffs or class members consent to such.
9 153. Plaintiffs and class members have been and are aggrieved by Defendants' electronic
10 surveillance, disclosure, andlor use of their wire communications.
11
12
13
154. On information and belief., the Count V Defendants are now engaging in and will
continue to engage in the above-described acts resulting in the electronic surveillance, disclosure,
andlor use of Plaintiffs' and class members' wire communications, acting in excess of the Count V 14 15 Defendants' statutory authority and in violation of statutory limitations, including 50 U.S.C. § 180
16 and 18 U.S.C. § 2511(2)(f), and are thereby irreparably harming Plaintiffs and class members.
17 Plaintiffs and class members have no adequate remedy at law for the Count V Defendants'
18 continuing unlawful conduct, and the Count V Defendants will continue to violate Plaintiffs' and 19
class members' legal rights unless enjoined and restrained by this Court. 20
21 155. Pursuant to Larson v. United Siales, 337 U.S. 682 (1949) and to 5 U.S.C. § 702,
22 Plaintiffs seek that this Court declare that Defendants have violated their rights and the rights of th
23 class; enjoin the Count V Defendants, their agents, successors, and assigns, and all those in active
24 concert and participation with them from violating the Plaintiffs' and class members' statutory
25 rights, including their rights under 50 U.S.C. §§ 1801 el seq.; and award such other and further
26 equitable relief as is proper. 27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page29 of 56
COUNT VI
2 Violation of 50 U.S.C. § 1809, actionable under 50 U.S.c. § 1810-Damages
3 (Named Plaintiffs vs. Defendants United States, National Security Agency, Department of Justice, Alexander (in his official and personal capacities), Hayden (in his personal
4 capacity), Cheney (in his personal capacity), Addington (in his personal capacity), Mukasey 5 (in his official and personal capacities), Gonzales (in his personal capacity), Ashcroft (in his
personal capacity), McConnell (in his official and personal capacities), and Negroponte (in 6 his personal capacity), and one or more of the Doe Defendants)
7 156. Plaintiffs repeat and incorporate herein by reference the allegations in the precedin
8 paragraphs of this complaint, as if set forth fully herein.
9
10
11
12
13
14
IS
16
17
18
19
20
21
22
23
24
25
26
27
28
157. In relevant part, SO U.S.C. § 1809 provides that:
(a) Prohibited activities-A person is guilty of an offense if he intentionally-( I) engages in electronic surveillance under color of law except as authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by this chapter, chapter 119, 121, or 206 of Title 18 or any express statutory authorization that is an additional exclusive means for conducting electronic surveillance under section 1812 of this title.
158. In relevant part SO U.S.C. § 1801 provides that:
(f) "Electronic surveillance" means - (I) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents arc acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of Title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio
1
2
3
4
5
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page30 of 56
communication, undcr circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforccmcnt purposes.
159. 18 U.S.C. § 2511 (2)(f) further provides in relevant part that "procedures in this
chapter or chapter 121 and the Foreign Intelligence Survcillancc Act of 1978 shall bc thtl?Xclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, 6 7 and the interception of domcstic wire, oral, and electronic communications may be conducted."
8 (Emphasis added.)
9 160. 50 U.S.C. § 1812 further providcs in relevant part that:
10
11
12
13
14
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119,121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
15 (Emphasis added.)
16
17
18
19
161. Defendants intentionally acquired, or aided, abetted, counseled, commanded,
induced, procured, encouraged, promoted, instigated, advised, willfully caused, participated in,
enabled, contributed to, facilitated, directed, controlled, assisted in, or conspircd in the commission
20 of such acquisition, by means of a surveillance device, the contents of one or more wire
21 communications to or from Plaintiffs or othcr infonnation in which Plaintiffs have a reasonable
22 expectation of privacy, without the consent of any party thereto, and such acquisition occurred in
23 the United States.
24
25
26
27
28
162. AT&T acted as the agent of Defendants in performing, participating in, enabling,
contributing to, facilitating, or assisting in the commission of the above-described acts of acquisiti
of Plaintiffs' communications.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page31 of 56
163. By the acts alleged herein, Defendants have intentionally engaged in, or aided,
2 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
3 willfully caused, participated in, enabled, contributed to, facilitated, directed. controlled. assisted i ,
4
5 or conspired in the commission of. electronic surveillance (as defined by 50 U.S.c. § 1801(t) und r
color of law. not authorized by any statute. to which Plaintiffs were subjected in violation of 50 6 7 U.S.C. § 1809.
8 164. Additionally or in the alternative. by the acts alleged herein. Defendants have
9 intentionally disclosed or used information obtained under color of law by electronic surveillance.
10 knowing or having reason to know that the information was obtained through electronic surveillan e
II not authorized by statute, including infonnation pertaining to Plaintiffs, or aided. abetted, counsele ,
12
13 commanded, induced, procured, encouraged. promoted, instigated, advised, willfully caused,
participated in, enabled, contributed to, facilitated, directed, controlled, assisted in, or conspired in 14
15 the commission of such acts.
16 165. Defendants did not notify Plaintiffs of the above-described electronic surveillance,
17 disclosure. and/or use, nor did Plaintiffs consent to such.
18 166. Plaintiffs have been and are aggrieved by Defendants' electronic surveillance, 19
disclosure, and/or use of their wire communications. 20
21 167. Pursuant to 50 U.S.c. § 1810, which provides a civil action for any person who has
been subjected to an electronic surveillance or about whom infonnation obtained by electronic 22
surveillance of such person has been disclosed or used in violation of 50 U.S.C. § 1809, Plaintiffs 23
24 seek from the Count VI Defendants for each Plaintiff their statutory damages or actual damages;
punitive damages as appropriate; and such other and further relief as is proper. 25
26
27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page32 of 56
1 COUNT VII
2 Violation of 18 U.S.C. § 2511-Dec1aratory, Injunctive, and Other Equitable Relief
3 (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
4 and personal capacities), and one or more of the Doe Defendants)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
168. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein.
169. In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as otherwise specifically providcd in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic . communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or]( d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
170. 18 U.S.c. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereot) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
171. 18 U .S.C. § 2511 (2)(1) further provides in relevant part that "procedures in this
23 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be tha?Xciusive
24 means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted."
26 (Emphasis added.)
27
28 172. 50 U.S.C. § 1812 further provides in relevant part that:
2
3
4
5
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page33 of 56
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Titlc 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
6 (Emphasis added.)
7 173. By the acts alleged herein, Defendants have intentionally and willfully intercepted,
8 endeavored to intercept, or procured another person to intcrcept or endeavor to intercept, Plaintiffs
9 and class members' wire or electronic communications in violation of 18 V.S.C. § 2511(1)(a); an r
10
11
12
13
174. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
endeavored to disclose, to another person the contents of Plaintiffs' and class members' wire or
electronic communications, knowing or having reason to know that the information was obtained
through the interception of wire or electronic communications in violation of 18 V.S.C. § 2511 (1)( ); 14
15 and/or
16 175. By the acts alleged herein, Defendants have intentionally and willfully used, or
17 endeavored to use, the contents ofPlaintifTs' and class members' wire or electronic communicatio s,
18 while knowing or having reason to know that the information was obtained through the interceptio
19 of wire or electronic communications in violation of 18 V.S.C. § 2511 (1)( d).
20
21 176. By the acts alleged herein, Defendants have intentionally and willfully caused, or
aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, 22 23 advised, participated in, contributed to, facilitated, directed, controlled, assisted in, or conspired to
24 cause AT&T's divulgence of Plaintiffs' and class members' wirc or electronic communications to
25 Defendants while in transmission by AT&T, in violation of 18 V.S.c. § 251 I (3)(a).
26 177. Dcfendants have committed these acts of interception, disclosurc, divulgcnce and/o 27
use ofPlaintifTs' and class members' communications directly or by aiding, abetting, counseling, 28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page34 of 56
1 commanding, inducing, procuring, encouraging, promoting, instigating, advising, willfully causing
2 participating in, enabling, contributing to, facilitating, directing, controlling, assisting in, or
3 conspiring in their commission. In doing so, Defendants have acted in excess of their statutory 4
5
6
authority and in violation of statutory limitations.
178. AT&T acted as the agent of Defendants in performing, participating in, enabling,
7 contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
8 divulgence and/or use of Plaintiffs' and class members' communications.
9 179. Defendants did not notify Plaintiffs or class members of the above-described
10 intentional interception, disclosure, divulgence and/or use of their wire or electronic
11 communications, nor did Plaintiffs or class members consent to such.
12
13 180. Plaintiffs and class members have been and are aggrieved by Defendants' intention
and willful interception, disclosure, divulgence and/or use of their wire or electronic 14
15 communications.
16 181. On information and belief, the Count VII Defendants are now engaging in and will
17 continue to engage in the above-described acts resulting in the intentional and willful interception,
18 disclosure, divulgence and/or use of Plaintiffs' and class members' wire or electronic 19
communications, acting in excess of the Count VII Defendants' statutory authority and in violation 20
of statutory limitations, including 18 U.S.C. § 2511, and are thereby irreparably harming Plaintiffs 21 22 and class members. Plaintiffs and class members have no adequate remedy at law for the Count V I
23 Defendants' continuing unlawful conduct, and the Count VII Defendants will continue to violate
24 Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court.
25 182. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose
26
27
28
wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
in violation of 18 U.S.C. § 2511, to Larson v. United States, 337 U.S. 682 (1949), and to 5 U.S.C.
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page35 of 56
1 § 702, Plaintiffs and class mcmbers seek equitable and declaratory relief against the Count VII
2 Defendants.
3
4
5
183. Plaintiffs seek that this Court declare that Defendants have violated their rights and
the rights of the class; enjoin the Count VII Defendants, their agents, successors, and assigns, and
all those in active concert and participation with them from violating the Plaintiffs' and class 6 7 members' statutory rights, including their rights under 18 U.S.C. § 2511; and award such other and
8 further equitable relief as is proper.
9 COUNT VIII
10 Violation of 18 U.S.C. § 2511, actionable under 18 U.S.c. § 2520-Damages
11 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
12 Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his
13
14
15
personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal capacity), and one or more of the Doe Defendants)
184. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein. 16
17
18
19
20
21
22
23
24
25
185. In relevant part, 18 U .S.C. § 2511 provides that:
(I) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
26 186. 18 U.S.C. § 2511 further provides that:
27
28
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to
2
3
4
5
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page36 of 56
such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
187. 18 U.S.C. § 2511(2)(f) further provides in relevant part that "procedures in this
chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thCl?Xclusive
means by which electronic surveillance, as defined in section 101 [50 U.S.C. § 1801] of such Act, 6 7 and the interception of domestic wire, oral, and electronic communications may be conducted."
8 (Emphasis added.)
9 188. 50 U .S.C. § 1812 further provides in relevant part that:
10
11
12
13
14
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
15 (Emphasis added.)
16 189. By the acts alleged herein, Defendants have intentionally and willfully intercepted, 17
endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs' 18
wire or electronic communications in violation of 18 U.S.C. § 251 I (I)(a); and/or 19
20 190. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
21 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic
22 communications, knowing or having reason to know that the information was obtained through the
23 interception of wire or electronic communications in violation of 18 U.S.C. § 2511(1)(c); and/or
24
25
26
191. By the acts alleged herein, Defendants have intentionally and willfully used, or
endeavored to usc, the contents of Plaintiffs' wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or 27 28 electronic communications in violation of 18 U.S.C. § 251 1 (I)(d).
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page37 of 56
I 192. By the acts alleged herein, Defendants have intentionally and willfully caused, or
2 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
3 advised, participated in, contributed to, facilitatcd, directed, controlled, assisted in, or conspired to 4
cause AT&T's divulgence of Plainti ffs' and class members' wire or electronic communications to 5
Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 251 I (3)(a). 6
7 193. Defendants have committed these acts of interception, disclosure, divulgence and/o
8 use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci ,
9 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
10 enabling, contributing to, facilitating, directing, controlling, assisting in, or conspiring in their 11
12
13
commIssIon.
194. AT&T acted as the agent of Defendants in pcrfonning, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure, 14 15 divulgence and/or use of Plaintiffs' communications.
16 195. Defendants did not notify Plaintiffs of the above-described intentional interception,
17 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or
18 class members consent to such. 19
20
21
22
196. Plaintiffs have been and are aggrieved by Defendants' intentional and willful
interception, disclosure, divulgence and/or use of their wire or electronic communications.
197. Pursuant to 18 U.S.C. § 2520, which provides a civil action for any person whose
23 wire or electronic communications have been intercepted, disclosed, divulged or intentionally used
24 in violation of 18 U.S.C. § 2511, Plaintiffs seek from the Count VIII Defendants for each Plaintiff
25 their statutory damages or actual damages; punitive damages as appropriate; and such other and
26 further relief as is proper. 27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page38 of 56
1 COUNT IX
2 Violation of 18 U.S.c. § 2511, actionable under 18 U.S.C. § 2712-Damages Against The United States
3 (Named Plaintiffs vs. Defendants United States, Department of Justice, and National
4 Security Agency)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
198. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein.
199. In relevant part, 18 U.S.C. § 2511 provides that:
(1) Except as otherwise specifically provided in this chapter any person who - (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... (c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire. oral. or electronic communication, knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... [or](d) intentionally uses, or endeavors to use, the contents of any wire, oral. or electronic communication. knowing or having reason to know that the infonnation was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection ... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).
200. 18 U.S.C. § 2511 further provides that:
(3)(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.
20 I. 18 U.S.C. § 2511 (2)(f) further provides in relevant part that "procedures in this
23 chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be thCX!xclusive
24 means by which electronic surveillance, as defmed in section 101 [50 U.S.C. § 1801] of such Act,
25 and the interception of domestic wire, oral, and electronic communications may be conducted."
26 (Emphasis added.)
27
28 202. 50 U.S.C. § 1812 further provides in relevant part that:
2
3
4
5
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page39 of 56
(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of Title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.
(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of Title 18 shall constitute an additional exclusive means for the purpose of subsection (a).
6 (Emphasis added.)
7
8
9
lO
11
203. By the acts alleged herein, Defendants have intentionally and willfully intercepted,
endeavored to intercept, or procured another person to intercept or endeavor to intercept, Plaintiffs
wire or electronic communications in violation of 18 U.S.C. § 251 I (1)(a); and/or
204. By the acts alleged herein, Defendants have intentionally and willfully disclosed, or
12 endeavored to disclose, to another person the contents of Plaintiffs' wire or electronic
13 communications, knowing or having reason to know that the information was obtained through the
14 interception of wire or electronic communications in violation of 18 U .S.C. § 2511 (1)( c); and/or
15
16
17
18
205. By the acts alleged herein, Defendants have intentionally and willfully used, or
endeavored to usc, the contents of Plaintiffs' wire or electronic communications, while knowing or
having reason to know that the information was obtained through the interception of wire or
electronic communications in violation of 18 U.S.C. § 251 I (l)(d). 19 20 206. By the acts alleged herein. Defendants have intentionally and willfully caused. or
21 aided, abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated,
22 advised, participated in, contributed to, facilitated, directed, controlled, assisted in. or conspired to
23 cause AT&T's divulgence of Plaintiffs' and class members' wire or electronic communications to 24
Defendants while in transmission by AT&T, in violation of 18 U.S.C. § 2511(3)(a). 25
26 207. Defendants have committed these acts of interception, disclosure, divulgence and/o
use of Plaintiffs' communications directly or by aiding, abetting, counseling, commanding, induci , 27
28 procuring, encouraging, promoting, instigating, advising, willfully causing, participating in,
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page40 of 56
1 enablingt contributing tOt facilitatingt directing, controlling, assisting in, or conspiring in their
2 conumsslon.
3
4
5
208. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of interception, disclosure,
divulgence and/or use of Plaintiffs' communications. 6
7 209. Defendants did not notify Plaintiffs of the above-described intentional interception,
8 disclosure, divulgence and/or use of their wire or electronic communications, nor did Plaintiffs or
9 class members consent to such.
10
11
12
13
210. Plaintiffs have been and are aggrieved by Defendants' intentional and willful
interception, disclosure, divulgence and/or use of their wire or electronic communications.
211. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
agencies and departments for any person whose wire or electronic communications have been 14 15 intercepted, disclosed, divulged or intentionally used in willful violation of 18 U .S.C. § 2511.
16 Plaintiffs have complied fully with the claim presentment procedure of 18 U.S.C. § 2712. Pursuan
17 to 18 U.S.C. § 2712, Plaintiffs seek from the Count IX Defendants for each Plaintiff their statutory
18 damages or actual damages, and such other and further relief as is proper. 19
20
21
COUNT X
Violation of 18 U.S.C. § 2703(a) & (b)-Declaratory, Injunctive, and Other Equitable Relief
22 (Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal capacities), Mukasey (in his official and personal capacities), and McConnell (in his official
23 and personal capacities), and one or more of the Doe Defendants)
24
25
26
27
28
212. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as ifset forth fully herein.
213. In relevant part, 18 U.S.C. § 2703 provides that:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page41 of 56
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a providcr of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(I) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (I) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
214. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised, 26 27 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
28 or conspired in soliciting and obtaining from AT&T, the disclosure to Defendants of the contents
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page42 of 56
of Plaintiffs' and class members' communications while in electronic storage by an AT&T electro ic
2 communication service, and/or while carried or maintained by an AT&T remote computing servic
3 in violation of 18 U.S.C. §§ 2703(a) and/or (b). In doing so, Defendants have acted in excess of 4
5
6
their statutory authority and in violation of statutory limitations.
215. AT&T acted as the agent of Defendants in performing, participating in, enabling,
7 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
8 and class members' communications.
9 216. Defendants did not notify Plaintiffs or class members of the disclosure of their
10 communications, nor did Plaintiffs or class members consent to such.
II
12
13
14
217. Plaintiffs and class members have been and are aggrieved by Defendants' above-
described soliciting and obtaining of disclosure of the contents of communications.
218. On information and belief, the Count X Defendants are now engaging in and will
15 continue to engage in the above-described soliciting and obtaining of disclosure of the contents of
16 class members' communications while in electronic storage by AT&T's electronic communication
17 service(s), and/or while carried or maintained by AT&T's remote computing service(s), acting in
18 excess of the Count X Defendants' statutory authority and in violation of statutory limitations, 19
including 18 U.S.C. § 2703(a) and (b), and are thereby irreparably harming Plaintiffs and class 20
members. Plaintiffs and class members have no adequate remedy at law for the Count X 21 22 Defendants' continuing unlawful conduct, and the Count X Defendants will continue to violate
23 Plaintiffs' and class members' legal rights unless enjoined and restrained by this Court.
24 219. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
25 by knowing or intentional violation of 18 U.S.C. § 2703, to Larson v. United States, 337 U.S. 682
26 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seck equitable and declaratory relief 27
28 against the Count X Defendants.
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page43 of 56
220. Plaintiffs seek that this Court declare that Defendants have violated their rights and
2 the rights of the class; enjoin the Count X Defendants, their agents, successors, and assigns, and all
3 those in active concert and participation with them from violating the Plaintiffs' and class member' 4
5 statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and further
equitable relief as is proper. 6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNT XI
Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.C. § 2707-Damages
(Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his personal capacity), McConnell (in his personal capacity), and Negroponte (in his personal
capacity), and one or more of the Doe Defendants)
221. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein.
222. In relevant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and eighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(I) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or
2
3
4
5
6
7
8
9
10
II
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page44 of 56
(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
12 223. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
13 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
14 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
15 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of the con ten
16
17 of Plaintiffs' communications while in electronic storage by an AT&T electronic communication
service, and/or while carried or maintained by an AT&T remote computing service, in violation of 18
19 18 U.S.C. §§ 2703(a) and/or (b).
20 224. AT&T acted as the agent of Defendants in performing, participating in, enabling,
21 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
22 communications. 23
24
25
26
225. Defendants did not notify Plaintiffs of the disclosure of their communications, nor
did Plaintiffs consent to such.
226. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an
27 obtaining of disclosure of the contents of communications.
28
Case3:13·cv-03287·JSW Document86·2 Filed03/10/14 Page45 of 56
1 227. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
2 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XI
3 Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as 4
5
6
7
8
9
appropriate; and such other and further relief as may be proper.
COUNT XII
Violation of 18 U.S.C. § 2703(a) & (b), actionable under 18 U.S.c. § 2712-Damages Against The United States
(Named Plaintiffs vs. Defendants United States, Department of Justice, and National Security Agency)
10 228. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
11 paragraphs of this complaint, as ifset forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
229. In relcvant part, 18 U.S.C. § 2703 provides that:
(a) Contents of Wire or Electronic Communications in Electronic Storage.- A governmental entity may require the disclosure by a provider of electronic communication service of the contcnts of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant. A governmental entity may require the disclosure by a provider of electronic communications services of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for more than one hundred and cighty days by the means available under subsection (b) of this section. (b) Contents of Wire or Electronic Communications in a Remote Computing Service.-
(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-
(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedurc by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (8) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-
(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
2
3
4
5
6
7
8
9
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page46 of 56
(ii) obtains a court order for such disclosure under subsection (d) of this section;
except that delayed notice may be given pursuant to section 2705 of this title.
(2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service-
(A) on behalf of. and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
10 230. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
11
12
13
abetted, counseled, commanded, induced. procured, encouraged, promoted. instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated. directed, controlled, assisted i •
or conspired in the soliciting and obtaining from AT&T the disclosure to the NSA of the contents 14 15 of Plaintiffs' communications while in electronic storage by an AT&T electronic communication
16 service, and/or while carried or maintained by an AT&T remote computing service. in violation of
17 18 U.S.C. §§ 2703(a) and/or (b).
18 231. AT&T acted as the agent of Defendants in performing, participating in, enabling,
19
20
21
22
contributing to. facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
communications.
232. Defendants did not notify Plaintiffs of the disclosure of their communications. nor
23 did Plaintiffs consent to such.
24 233. Plaintiffs have been and are aggrieved by Defendants' above-described soliciting an
25 obtaining of disclosure of the contents of communications.
26 234. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
27 agencies and departments for any person whose communications have been disclosed in will~l
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page47 of 56
violation of 18 U.S.C. § 2703. Plaintiffs have complied fully with the claim prcsentment procedur
2 of 18 U.S.C. § 2712. Pursuant to 18 U.S.C. § 2712, Plaintiffs seek from the Count XII Defendants
3 for each Plaintiff their statutory damages or actual damages, and such other and further relief as is 4
5
6
7
proper.
COUNT XIII
Violation of 18 U.S.C. § 2703(c)-Declaratory, Injunctive, and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants Alexander (in his official and personal 8 capacities), Mukasey (in his official and personal capacities), and McConnell (in his official 9 and personal capacities), and one or more of the Doe Defendants)
10 235. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
11 paragraphs of this complaint, as if set forth fully herein.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
236. In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(I) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (8) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or (E) seeks information under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-
(A) name; (8) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized;
2
3
4
5
6
7
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page48 of 56
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.
237. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
8 abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
9 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
10 or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
11 other information pertaining to Plaintiffs' and class members' use of electronic communication
12 services and/or remote computing services offered to the public by AT&T, in violation of 18 U.S.
13 § 2703(c). In doing so, Defendants have acted in excess of their statutory authority and in violatio
14 of statutory limitations.
15
16
17
18
19
238. AT&T acted as the agent of Defendants in performing, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
and class members' records or other information.
239. Defendants did not notify Plaintiffs or class members of the disclosure of these
20 records or other information pertaining to them and their use of AT&T scrvices, nor did Plaintiffs
21 or class members consent to such.
22 240. Plaintiffs and class members have been and are aggrieved by Defendants' above-
23
24
25
26
described acts of soliciting and obtaining disclosure by AT&T of records or other information
pertaining to Plaintiffs and class members.
241. On information and belief, the Count XIII Defendants are now engaging in and will
27 continue to engage in the above-described soliciting and obtaining disclosure by AT&T of records
28 or other information pertaining to Plaintiffs and class members, acting in excess of the Count XIII
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page49 of 56
Defendants' statutory authority and in violation of statutory limitations, including 18 U.S.C. §
2 2703(c), and are thereby irreparably harming Plaintiffs and class members. Plaintiffs and class
3 members have no adequate remedy at law for the Count XIII Defendants' continuing unlawful
4
5 conduct, and the Count XIII Defendants will continue to violate Plaintiffs' and class members' leg I
rights unless enjoined and restrained by this Court. 6
7 242. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
8 by knowing or intentional violation of 18 U.S.C. § 2703, toLarson v. United States, 337 U.S. 682
9 (1949), and to 5 U.S.C. § 702, Plaintiffs and class members seek equitable and declaratory relief
10 against the Count XIII Defendants.
II
12
13
243. Plaintiffs seek that the Court declare that Defendants have violated their rights and
the rights of the class; enjoin the Count XIII Defendants, their agents, succcssors, and assigns, and
all those in active concert and participation with them from violating the Plaintiffs' and class 14
15 members' statutory rights, including their rights under 18 U.S.C. § 2703; and award such other and
16 further equitable relief as is proper.
17 COUNT XIV
18 Violation of 18 U.S_C. § 2703(c), actionable under 18 U.S.C. § 2707-Damages
19 (Named Plaintiffs vs. Defendants Alexander (in his personal capacity), Hayden (in his 20 personal capacity), Cheney (in his personal capacity), Addington (in his personal capacity),
Mukasey (in his personal capacity), Gonzales (in his personal capacity), Ashcroft (in his 21 personal capacity), McConnell (in his personal capacity), and Ncgroponte (in his personal
capacity), and one or more of the Doe Defendants) 22
23 244. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
24 paragraphs of this complaint, as if set forth fully herein.
25 245. In relevant part, 18 U.S.C. § 2703(c) provides that:
26
27
28
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(I) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page50 of 56
other infonnation pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure; (D) submits a fonnal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such tenn is defmed in section 2325 of this title); or (E) seeks infonnation under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (I). (3) A governmental entity receiving records or infonnation under this subsection is not required to provide notice to a subscriber or customer.
20 246. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
21 abetted, counseled, commandcd, induced, procured, encouraged, promoted, instigated, advised,
22 willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
23 or conspired in the soliciting and obtaining from AT&T the disclosure to Defcndants of records or
24 other infonnation pertaining to Plaintiffs' use of electronic communication services and/or remote
25 computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
26
27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page51 of 56
1 247. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
2 contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
3 records or other infonnation. 4
248. Defendants did not notify Plaintiffs of the disclosure of these records or other 5
infonnation pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such. 6
7 249. Plaintiffs have been and are aggrieved by Defendants' above-described acts of
8 soliciting and obtaining disclosure by AT&T of records or other infonnation pertaining to Plaintiffi .
9 250. Pursuant to 18 U.S.C. § 2707, which provides a civil action for any person aggrieve
10 by knowing or intentional violation of 18 U.S.C. § 2703, Plaintiffs seek from the Count XIV 11
Defendants for each Plaintiff their statutory damages or actual damages; punitive damages as 12
13
14
appropriate; and such other and further relief as may be proper.
COUNT XV
15 Violation of 18 U.S.C. § 2703(c), actionable under 18 U.S.C. § 2712-Damages Against The United States
16
17 (Named Plaintiffs vs. Defendants United States, Department of Justice, and National
Security Agency)
18 251. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
19 paragraphs of this complaint, as ifset forth fully herein.
20
21
22
23
24
25
26
27
28
252. In relevant part, 18 U.S.C. § 2703(c) provides that:
(c) Records Concerning Electronic Communication Service or Remote Computing Service.-
(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other infonnation pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity-
(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section;
2
3
4
5
6
7
8
9
10
II
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page52 of 56
(C) has the consent of the subscriber or customer to such disclosure; (D) submits a fonnal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such tenn is defined in section 2325 of this title); or (E) seeks infonnation under paragraph (2).
(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the-
(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (l). (3) A governmental entity receiving records or infonnation under this subsection is not required to provide notice to a subscriber or customer.
253. Defendants intentionally and willfully solicited and obtained from AT&T, or aided,
abetted, counseled, commanded, induced, procured, encouraged, promoted, instigated, advised,
willfully caused, participated in, enabled, contributed to, facilitated, directed, controlled, assisted i ,
or conspired in the soliciting and obtaining from AT&T the disclosure to Defendants of records or
other infonnation pertaining to Plaintiffs' use of electronic communication services and/or remote
computing services offered to the public by AT&T, in violation of 18 U.S.C. § 2703(c).
254. AT&T acted as the agent of Defendants in perfonning, participating in, enabling,
contributing to, facilitating, or assisting in the commission of these acts of disclosure of Plaintiffs'
records or other infonnation.
255. Defendants did not notify Plaintiffs of the disclosure of these records or other
26 infonnation pertaining to them and their use of AT&T services, nor did Plaintiffs consent to such.
27
28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page53 of 56
1 256. Plaintiffs have been and are aggrieved by Defendants' above-described acts of
2 soliciting and obtaining disclosure by AT&T of records or other infonnation pertaining to Plaintiffl .
3
4
5
257. Title 18 U.S.C. § 2712 provides a civil action against the United States and its
agencies and departments for any person aggrieved by willful violation of 18 U.S.C. § 2703.
Plaintiffs have complied fully with the claim presenbncnt procedure of 18 U.S.C. § 2712. Pursuan 6 7 to 18 U.S.C. § 2712, Plaintiffs seek from the Count XV Defendants for each Plaintiff their statuto
8 damages or actual damages and such other and further relief as is proper.
9
10
II
COUNT XVI
Violation of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. - Declaratory, Injunctive, and Other Equitable Relief
12 (Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Alexander (in his official and personal capacities), Mukasey (in his official
13 and personal capacities), and McConnell (in his official and personal capacities), and one
14
15
or more of the Doe Defendants)
258. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein. 16
17 259. The Program violates the Administrative Procedures Act, 5 U.S.C. § 701 et seq.,
18 because Defendants' actions under the Program exceed statutory authority and limitations imposed
19 by Congress through FISA. and through Chapters 119. 121 and 206 of Title 18 of the U.S. Code ( e
20 Wiretap Act. the Stored Communications Act, and the Pen Register Statute, respectively) and in 21
22 violation of statutory rights under those law,;are not otherwise in accordance with law; are contrary
to constitutional rights. including the Fourth Amendment, First Amendment. and separation of 23 24 powers principles; and are taken without observance of procedures required by law.
25 260. Plaintiffs and class members are aggrieved by these violations because, as describe
26 previously in this Complaint. Defendants' actions under the Program has resulted in the interceptio ,
27 acquisition, disclosure. divulgence and/or use of the contents of their wire and electronic 28
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page54 of 56
1 communications, communications records, and other infonnation in violation of their constitutiona
2 and statutory rights.
3
4
5
261. Plaintiffs seek nonmonetary relief against the Count XVI Defendants, including a
declaration that Defendants have violated their rights and the rights of the class; an injunction
enjoining the Count XVI Defendants, their agents, successors, and assigns, and all those in active 6 7 concert and participation with them from violating the Plaintiffs' and class members' rights; and
8 such other and further nonmonetary relief as is proper.
9
10
11
12
13
COUNT XVII
Violation of Separation of Powers - Declaratory, Injunctive, and Other Equitable Relief
(Named Plaintiffs and Class vs. Defendants United States, Department of Justice, National Security Agency, Bush (in his official and personal capacities), Alexander (in his official
and personal capacities), Mukasey (in his official and personal capacities), and McConneU (in his official and personal capacities), and one or more of the Doe Defendants)
14 262. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
15 paragraphs of this complaint, as ifset forth fully herein.
16
17
18
19
263. The Program violates the principles of separation of powers because it was
authorized by the Executive in excess of the Executive's authority under Article II ofthe United
States Constitution, in excess of statutory authority granted the Executive under FISA and under
Chapters 119, 121 and 206 of Title 18 of the U.S. Code (the Wiretap Act, the Stored 20
Communications Act, and the Pen Register Statute, respectively) and exceeds the statutory limits 21
imposed on the Executive by Congress. 22
23 264. Plaintiffs and class members arc aggrieved by these violations because, as described
24 previously in this Complaint, Defendants' actions under the Program has resulted in the interceptio ,
25 acquisition, disclosure, divulgence and/or use of the contents of their wire and electronic
26 communications, communications records, and other information in violation of their constitutiona
27 and statutory rights. 28
Case3:13-cv-03287-JSW Document86-2 Filed03/10/14 Page55 of 56
265. Plaintiffs seek nonmonetary relief against the Count xvn Defendants, including a
2 declaration that Defendants have violated their rights and the rights of the class; an injunction
3 enjoining the Count XVII Defendants, their agents, successors, and assigns, and all those in active
4
5 concert and participation with them from violating the Plaintiffs' and class members' rights; and fo
such other and further nonmonetary relief as is proper. 6
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court:
A. Declare that the Program as alleged herein violates without limitation Plaintiffs' an
10 class members' rights under the First and Fourth Amendments to the Constitution; their statutory
11 rights, including their rights under 18 U.S.C. § 2511, 18 U.S.C. § 2703, 50 US.C. § 1809, and the
12 Administrative Procedures Act; and their rights under the constitutional principle of Separation of
13 Powers.
14 B. Award Plaintiffs and the class equitable relief, including without limitation, a
15 preliminary and permanent injunction pursuant to the First and Fourth Amendments to the United
16 States Constitution prohibiting Defendants' continued use of the Program, and a preliminary and
17 permanent injunction pursuant to the Fourth Amendment requiring Defendants to provide to
18 Plaintiffs and the class an inventory of their communications, records, or other information that wa
19 seized in violation of the Fourth Amendment, and further requiring the destruction of all copies of
20 those communications, records, or other information within the possession, custody, or control of
21 Defendants.
22 C. Award Plaintiffs their statutory, actual, and punitive damages to the extent permitte
23 by law and according to proof.
24 D. Award to Plaintiffs reasonable attorneys' fees and other costs of suit to the extent
25 permitted by law.
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G. Grant such other and further relief as the Court deems just and proper.
/I
II
Case3:13-cv-03287 -JSW Document86-2 Filed03/10/14 Page56 of 56
JURY DEMAND
2 Plaintiffs hereby request ajury trial for all issues triable by jury including, but not limited to,
3 those issues and claims set forth in any amended complaint or consolidated action.
4 DATED: September/1,2008 ~ ~ 5
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ELECTRONIC FRONTIER FOUNDATION CINDY COHN (1455997) LEE TIEN (148216) KURT OPSAHL (191303) KEVIN S. BANKSTON (217026) JAMES S. TYRE (083117) 454 Shotwell Street San Francisco, CA 94110 Telephone: 415/436-9333 415/436-9993 (fax)
RICHARD R. WIEBE (121156) LA W OFFICE OF RICHARD R. WIEBE 425 California Street, Suite 2025 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382
THOMAS E. MOORE III (115107) THE MOORE LAW GROUP 228 Hamilton Avenue, 3rd Floor Palo Alto, CA 94301 Telephone: (650) 798-5352 Facsimile: (650) 798-5001
Attorneys for Plaintiffs
COMPLAINT -54-
Case3:l3-cv-03287-JSW Document86-3 Filed03/l0/l4 Pagel of 29
Exhibit B
Exhibit B
CINDY COHN (SBN 145997) [email protected]
RACHAEL E. MENY (SBN 178514) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
3 MATTHEW ZIMMERMAN (SBN 212423) MARK RUMOLD (SBN 279060)
MICHAEL S. KWUN (SBN 198945) BENJAMIN W. BERKOWITZ (SBN 244441) KEKER & VAN NEST, LLP 633 Battery Street
4 DAVID GREENE (SBN 160107) San Francisco, California 94111 JAMES S. TYRE (SBN 083117) Tel.: (415) 391-5400; Fax: (415) 397-7188
5 ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street
6 San Francisco, CA 94109 RICHARD R. WIEBE (SBN 121156) [email protected]
Tel.: (415) 436-9333; Fax: (415) 436-9993 7
LAW OFFICE OF RICHARD R. WIEBE One California Street, Suite 900
THOMAS E. MOORE III (SBN 115107) 8 [email protected]
San Francisco, CA 94111 Tel.: (415) 433-3200; Fax: (415) 433-6382
ROYSE LAW FIRM, PC 9 1717 Embarcadero Road ARAM ANTARAMIAN (SBN 239070)
Palo Alto, CA 94303 [email protected] 10 Tel.: 650-813-9700; Fax: 650-813-9777 LAW OFFICE OF ARAM ANTARAMIAN
1714 Blake Street 11 Attorneys for Plaintiffs Berkeley, CA 94703
Telephone: (510) 289-1626 12
13
14
15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
FIRST UNITARIAN CHURCH OF LOS ) 16 ANGELES; ACORN ACTIVE MEDIA; BILL OF )
RIGHTS DEFENSE COMMITTEE; CALGUNS ) 17 FOUNDATION, INC.; CALIFORNIA )
ASSOCIATION OF FEDERAL FIREARMS ) 18 LICENSEES, INC.; CHARITY AND SECURITY)
NETWORK; COUNCIL ON AMERICAN ) 19 ISLAMIC RELATIONS-CALIFORNIA; )
COUNCIL ON AMERICAN ISLAMIC ) 20 RELATIONS-OHIO; COUNCIL ON )
AMERICAN ISLAMIC RELA TIONS- ) 21 FOUNDATION, INC.; FRANKLIN ARMORY; )
FREE PRESS; FREE SOFTWARE ) 22 FOUNDATION; GREENPEACE, INC.; HUMAN )
RIGHTS WATCH; MEDIA ALLIANCE; ) 23 NATIONAL LAWYERS GUILD; NATIONAL )
ORGANIZATION FOR THE REFORM OF ) 24 MARIJUANA LAWS, CALIFORNIA CHAPTER;)
PATIENT PRIVACY RIGHTS; PEOPLE FOR ) 25 THE AMERICAN WAY; PUBLIC )
KNOWLEDGE; SHALOM CENTER; ) 26 STUDENTS FOR SENSmLE DRUG POLICY; )
TECHFREEDOM; and UNITARIAN ) 27 UNNERSALIST SERVICE COMMITTEE, )
) 28 Plaintiffs.)
Case No: 3:I3-cv-03287 JSW
FIRST AMENDED COMPLAINT FOR CONSTITUTIONAL AND STATUTORY VIOLATIONS, SEEKING DECLARATORY AND INJUNCTIVE RELIEF
Hon. Jeffrey S. White Courtroom II - 19th Floor
DEMAND FOR JURY TRIAL
FIRST AMENDED COMPLAINT
v. ) )
2 NATIONAL SECURITY AGENCY and KEITH ) B. ALEXANDER, its Director, in his official and )
3 individual capacities; the UNITED STATES OF ) AMERICA; DEPARTMENT OF JUSTICE and )
4 ERIC H. HOLDER, its Attorney General, in his ) official and individual capacities; Acting Assistant )
5 Attorney General for National Security JOHN P. ) CARLIN, in his official and individual capacities; )
6 FEDERAL BUREAU OF INVESTIGATION and ) JAMES B. COMEY, its Director, in his official )
7 and individual capacities; ROBERT S. ) MUELLER former Director of the FEDERAL )
8 BUREAU OF INVESTIGATION, in his individual) capacity; JAMES R. CLAPPER, Director of )
9 National Intelligence, in his official and individual ) capacities, and DOES 1-100, )
10 ) Defendants. )
II )
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CASE NO. 13-cv-3287 JSW
I I. Plaintiffs bring this action on behalf of themselves and, where indicated, on behalf of
2 their members and staff. Plaintiffs allege as follows:
3
4 2.
PRELIMINARY STATEMENT
Plaintiffs, as described more particularly below, are associations, as well as the
5 members and staffs of associations, who use the telephone to engage in private communications
6 supportive of their associations and activities, including engaging in speech, assembly, petition for
7 the redress of grievances, and the exercise of religion.
8 3. This lawsuit challenges an illegal and unconstitutional 'program of dragnet electronic
9 surveillance, specifically the bulk acquisition, seizure, collection, storage, retention, and searching of
10 telephone communications information (the "Associational Tracking Program") conducted by the
II National Security Agency (NSA) and the other defendants (collectively, "Defendants").
12 4. The Associational Tracking Program is vast. It collects telephone communications
13 information for all telephone calls transiting the networks of all major American telecommunication
14 companies, including Verizon, AT&T, and Sprint, ostensibly under the authority of section 215 of
15 the USA PATRIOT Act, codified at 50 U.S.C. § 1861.
16 5. The communications information that Defendants collect in the Associational
17 Tracking Program is retained and stored by Defendants in one or more databases. The Program
18 collects information concerning all calls wholly within the United States, including local telephone
19 calls, as well as all calls between the United States and abroad, regardless of a connection to
20 international terrorism, reasonable suspicion of criminality, or any other form of wrongdoing. This
21 information is stored for at least five years. Defendants have indiscriminately obtained, and stored
22 the telephone communications information of millions of ordinary Americans as part of the
23 Associational Tracking Program.
24 6. Defendants search and analyze the Associational Tracking Program's database( s) for
25 various purposes, including but not limited to, obtaining the communications history of particular
26 phone numbers, which, when aggregated, reveals those numbers' contacts and associations over
27 time.
28 1 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
7. Defendants' collection oftelephone communications information includes, but is not
2 limited to, records indicating who each customer communicates with, at what time, for how long and
3 with what frequency communications occur. This communications information discloses the
4 expressive and private associational connections among individuals and groups, including Plaintiffs
5 and their members and staff.
6 8. The Associational Tracking Program has been going on in various forms since October
7 2001.
8 9. The bulk collection of telephone communications information without a valid,
9 particularized warrant supported by probable causc violates the First, Fourth, and Fifth Amendments,
10 as well as statutory prohibitions and limitations on electronic surveillance.
II 10. Defendants' searches of the Associational Tracking Program database(s) without a
12 valid, particularized warrant supported by probable cause violate the First, Fourth, and Fifth
13 Amendments.
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15
II.
12.
Plaintiffs' records are searched even if they are not targets of the search.
Plaintiffs are organizations, associations, and advocacy groups, their staffs, and their
16 members who are current subscribers to Verizon and other telephone services. Using the
17 Associational Tracking Program, Defendants seize, collect, acquire, retain, and search the records of
18 the telephone communications of Plaintiffs, their members and staff, and others seeking to associate
19 and communicate with them.
20
21 13.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C.
22 § 1331,5 U.S.C. § 702, and the Constitution.
23 14. Plaintiffs are informed, believe, and thereon allege that Defendants have sufficient
24 contacts with this district generally and, in particular, with the events herein alleged, that Defendants
25 are subject to the exercise of jurisdiction of this court over the person of such Defendants and that
26 venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
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15. Plaintiffs are informed, believe, and thereon allege that a substantial part of the events
2 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
giving rise to the claims herein alleged occurred in this district and that Defendants andlor agents of
2 Defendants may be found in this district.
3 16. Intradistrict Assignment: Assignment to the San Francisco/Oakland division is
4 proper pursuant to Local Rule 3-2(c) and (d) because a substantial portion of the events and
5 omissions giving rise to this lawsuit occurred in this district and division.
6 PARTIES
7 17. Plaintiff First Unitarian Church of Los Angeles (First Unitarian) was founded in 1877
8 by Caroline Seymour Severance, a woman who worked all her life for causes such as the abolition of
9 slavery and women's suffrage. First Unitarian is located in Los Angeles, California. Throughout its
10 history members of First Unitarian defined their religious goals in terms of justice, equality, and
11 liberty for all persons. During the middle decades of the 20th century, First Unitarian provided aid to
12 Japanese-Americans displaced by internment camps, defended free speech against anti-communist
13 hysteria, and protested nuclear proliferation. In the 1980s, First Unitarian provided sanctuary to
14 Central American refugees and, in recent decades, First Unitarian opened its building as a
15 community center for the economically-depressed and ethnically-diverse neighborhood of
16 MacArthur Park. Members of First Unitarian have been quick to engage in difficult work and
17 controversial ideas and are proud of their contribution to moving the world closer to justice for all.
18 First Unitarian brings this action on behalf of itself and its adversely affected members and staff.
19 18. Plaintiff Acorn Active Media is an outlet for technically skilled members to build
20 technical resources for groups, non-profits, and individuals who otherwise do not have the capacity
21 or would not be able to afford these services. Since Acorn's inception in January 2004, it has
22 engaged in website design, web application development, gcneral technical consulting and hardware
23 support, and organizational database development for a diverse array of groups, individuals, and
24 organizations from around the globe. Acorn members have supported democracy advocates and
2S independent media outlets worldwide, often working directly with communities laboring under
26 hostile and oppressive regimes. Plaintiff Acorn brings this action on behalf of itself and its adversely
27 affected volunteers and members.
28 3 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 19. Plaintiff Bill of Rights Defense Committee (BORDC) is a non-profit, advocacy
2 organization based in Northhampton, Massachusetts. BORDC supports an ideologically, politically,
3 ethnically, geographically, and generationally diverse grassroots movement focused on educating
4 Americans about the erosion of fundamental freedoms; increasing civic participation; and converting
5 concern and outrage into political action. BORDC brings this action on behalf of itself and its
6 adversely affected staff.
7 20. Plaintiff Calguns Foundation, Inc. (CGF) is a non-profit, membership organization
8 based in San Carlos, California. CGF works to support the California fireanns community by
9 promoting education for all stakeholders about California and federal fire ann laws, rights, and
10 privileges, and defending and protecting the civil rights of California gun owners. In particular, CGF
11 operates a hotline for those with legal questions about gun rights in California. PlaintiffCGF brings
12 this action on behalf of itself and on behalf of its adversely affected members and staff.
13 21. Plaintiff California Association of Federal Fireanns Licensees, Inc. (CAL-FFL) is a
14 non-profit, industry association of, by, and for fireanns manufacturers, dealers, collectors, training
15 professionals, shooting ranges, and others, advancing the interests of its members and the general
16 public through strategic litigation,legislative efforts, and education. CAL-FFL expends financial and
17 other resources in both litigation and non-litigation projects to protect the interests of its members
18 and the public at large. CAL-FFL brings this action on behalf of itself and its adversely affected
19 members and staff.
20 22. Plaintiff Charity and Security Network's mission is to protect civil society's ability to
21 carry out peacebuilding projects, humanitarian aid, and development work effectively and in a
22 manner consistent with human rights principles and democratic values. To accomplish this, the
23 Network focuses on: coordinating advocacy by bringing together stakeholders from across the
24 nonprofit sector with policymakers to support needed changes in U.S. national security rules; and
25 raising awareness, dispelling myths and promoting awareness of the positive contribution civil
26 society makes to human security. CSN brings this action on behalf ofitself and its adversely affected
27 membership and staff.
28 4 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 23. Plaintiffs Council on American Islamic Relations - California (CAIR-CA), Council on
2 American Islamic Relations-Ohio (CAIR-OHIO), and Council on American Islamic Relations-
3 Foundation, Inc. (CAIR-F) are non-profit, advocacy organization with offices in California, Ohio,
4 and Washington, D.C., respectively. CAIR-CA, CAIR-OHIO, and CAIR-F's missions are to
5 enhance the understanding ofIslam, encourage dialogue, protect civil liberties, empower American
6 Muslims, and build coalitions that promote justice and mutual understanding. CAIR-CA, CAIR-
7 OHIO, and CAIR-F bring this action on behalf of themselves and their adversely affected staffs.
8 24. Plaintiff Franklin Armory, a wholly owned subsidiary of CBE, Inc., is a state and
9 federally licensed manufacturer of firearms located in Morgan Hill, California. Franklin Annory
10 specializes in engineering and building products for restrictive firearms markets, such as California.
11 Franklin Armory is a member ofCAL-FFL. Franklin Armory brings this suit on its own behalf.
12 25. Plaintiff Free Press is a non-profit, advocacy organization based in Washington, D.C.
13 Free Press's mission is to build a nationwide movement to change media and technology policies,
14 promote the public interest, and strengthen democracy by advocating for universal and affordable
IS Internet "access, diverse media ownership, vibrant public media, and quality journalism. Free Press
16 brings this action on behalf of itself and its adversely affected members and staff.
17 26. Plaintiff the Free Software Foundation (FSF) is a non-profit, membership organization
18 based in Boston, Massachusetts. FSF helped pioneer a worldwide free software movement and "
19 provides an umbrella of legal and technical infrastructure for collaborative software development
20 internationally. FSF brings this action on behalf of itself and its adversely affected members and
21 staff.
22 27. Plaintiff Greenpeace, Inc. (Greenpeace) is a non-profit, membership organization
23 headquartered in Washington, D.C. Through a domestic and international network of offices and
24 staff, Greenpeace uses research, advocacy, public education, lobbying, and litigation to expose
25 global environmental problems and to promote solutions that are essential to a green and peaceful
26 future. Greenpeace brings this action on behalf of itself and its adversely affected members and staff.
27 28." Plaintiff Human Rights Watch (HRW) is a non-profit, advocacy organization, based in
28 5 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 New York, New York. Through its domestic and international network of offices and staff, HR W
2 challenges governments and those in power to end abusive practices and respect international human
3 rights law by enlisting the public and the international community to support the cause of human
4 rights for all. HRW brings this action on behalf of itself and its adversely affected staff.
5 29. Plaintiff Media Alliance is a non-profit, membership organization based in Oakland,
6 California. Media Alliance serves as a resource and advocacy center for media workers, non-profit
7 organizations, and social justice activists to make media accessible, accountable, decentralized,
8 representative of society's diversity, and free from covert or overt government control and corporate
9 dominance. Media Alliance brings this action on behalf ofitself and its adversely affected members
10 and staff.
11 30. Plaintiff National Lawyers Guild, Inc. is a non-profit corporation fonned in 1937 as
12 the nation's first racially integrated voluntary bar association. For over seven decades the Guild has
13 represented thousands of Americans critical of government policies, from antiwar, environmental
14 and animal rights activists, to Occupy Wall Street protesters, to individuals accused of computer-
15 related offenses. From 1940-1975 the FBI conducted a campaign of surveillance, investigation and
16 disruption against the Guild and its members, trying unsuccessfully to label it a subversive
17 organization. The NLG brings this action on behalf of itself and its adversely affected membership
18 and staff.
19 31. Plaintiff National Organization for the Reform of Marijuana Laws, California Chapter
20 (NORML, California Chapter) is a non-profit, membership organization located in Berkeley,
21 California. NORML, California Chapter is dedicated to refonning California's marijuana laws and
22 its mission is to establish the right of adults to use cannabis legally. NORML, California Chapter
23 brings this action on behalf of itself and its adversely affected members and staff.
24 32. Plaintiff Patient Privacy Rights (PPR) is a bipartisan, non-profit organization with
25 12,000 members in all 50 states. It works to give patients control over their own sensitive health
26 information in electronic systems, with the goal of empowering privacy and choices that protect jobs
27 and opportunities and ensure trust in the patient-physician relationship. The lack of privacy of health
28 6 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 infonnation causes millions of individuals every year to refuse or delay needed medical treatment or
2 hide infonnation, putting their health at risk. PPR brings this action on behalf of itself and its
3 adversely affected members and volunteers.
4 33. Plaintiff People for the American Way (PF A W) is a non-profit, membership
5 organization based in Washington, D.C. With over 595,000 members, PF A W's primary function is
6 the education of its members, supporters, and the general public as to important issues that impact
7 fundamental civil and constitutional rights and freedoms, including issues concerning civil liberties,
8 government secrecy, improper government censorship, and First Amendment freedoms. PFAW
9 brings this action on behalf of itself and its adversely affected members and staff.
10 34. Plaintiff Public Knowledge is a non-profit, advocacy organization based in
11 Washington, D.C. Public Knowledge is dedicated to preserving the openness of the Internet and the
12 public's access to knowledge, promoting creativity through the balanced application of copyright
13 laws, and upholding and protecting the rights of consumers to use innovative technology lawfully.
14 Public Knowledge brings this action on behalf of itself and its adversely affected staff.
15 35. Plaintiff the Shalom Center seeks to be a prophetic voice in Jewish, multi religious, and
16 American life. It connects the experience and wisdom of the generations forged in the social,
17 political, and spiritual upheavals of the last half-century with the emerging generation of activists,
18 addressing with special concern the planetary climate crisis and the power configurations behind that
19 crisis. The Shalom Center brings this action on behalf of itself and its adverscly affected membership
20 and staff.
21 36. Plaintiff Students for Sensible Drug Policy (SSDP) is a non-profit, membership
22 organization based in Washington, D.C. With over 3,000 members, SSDP is an intcrnational,
23 grassroots network of students who are concerned about the impact drug abuse has on our
24 communities, but who also know that the War on Drugs is failing our gcneration and our society.
25 SSDP creates change by bringing young people together and creating safe spaces for students of all
26 political and ideological stripes to have honest conversations about drugs and drug policy. SSDP
27 brings this action on behalf of itself and its adversely affected membership and staff.
28 7 FIRST AMENDED COMPLAINT
CASE NO. 13-ev-3287 JSW
37. Plaintiff TechFreedom is a non-profit, think tank based in Washington, D.C.
2 TechFreedom's mission is promoting technology that improves the human condition and expands
3 individual capacity to choose by educating the public, policymakers, and thought leaders about the
4 kinds of public policies that enable technology to flourish. TechFreedom seeks to advance public
5 policy that makes experimentation, entrepreneurship, and investment possible, and thus unleashes
6 the ultimate resource: human ingenuity. TechFrecdom brings this action on behalf of itself and its
7 adversely affected staff.
8 38. Plaintiff Unitarian Universalist Service Committee (UUSC) is a non-profit,
9 membership organization based in Cambridge, Massachusetts. UUSC advances human rights and
10 social justice around the world, partnering with those who confront unjust power structures and
II mobilizing to challenge oppressive policies. Through a combination of advocacy, education, and
12 partnerships with grassroots organizations, UUSC promotes economic rights, advances
13 environmental justice, defends civil liberties, and preserves the rights of people in times of
14 humanitarian crisis. UUSC brings this action on behalf of itself and its adversely affected members
15 and staff.
16 39. All Plaintiffs make and receive telephone calls originating within the United States in
17 furtherance of their mission and operations. In particular, Plaintiffs make and receive telephone calls
18 to and from their members, staffs, and constituents, among other groups and individuals seeking to
19 associate with them, in furtherance of their mission and operations, including advancing their
20 political beliefs, exchanging ideas, and formulating strategy and messages in support of their causes.
21 40. Each of the Plaintiffs above is a membership organization and brings this action on
22 behalf of its members has members whose communications information has been collected as part of
23 the Associational Tracking Program.
24 41. Defendant NSA is an agency under the direction and control of the Department of
25 Defense that seizes, collects, processes, and disseminates signals intelligence. It is responsible for
26 carrying out at least some of the Associational Tracking Program challenged herein.
27 42. Defendant General Keith B. Alexander is the current Director of the NSA, in office
28 8 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 since April of 2005. As NSA Director, General Alexander has authority for supervising and
2 implementing all operations and functions of the NSA, including the Associational Tracking
3 Program. General Alexander personally authorizes and supervises the Associational Tracking
4 Program.
5 43. Defendant United States is the United States of America, its departments, agencies,
6 and entities.
7 44. Defendant Department of Justice is a Cabinet-level executive department in the United
8 States government charged with law enforcement, defending the interests of the United States
9 according to the law, and ensuring fair and impartial administration of justice for all Americans.
10 45. Defendant Eric H. Holder is the current Attorney General of the United States, in
11 office since February of2009. Attorney General Holder personally approves, authorizes, supervises,
12 and participates in the Associational Tracking Program on behalf ofthe Department of Justice.
13 46. Defendant John B. Carlin is the current Acting Assistant Attorney General for
14 National Security. In that position, defendant Carlin participates in the Department of Justice's
15 implementation of the Associational Tracking Program.
16 47. Defendant Federal Bureau oflnvestigation (FBI) is a component of the Department of
17 Justice that conducts federal criminal investigation and collects domestic intelligence. FBI is
18 responsible for carrying out at least some of the Associational Tracking Program activities
19 challenged herein.
20 48. Defendant James B. Corney is the current Director of the FBI, in office since
21 September of2013. As FBI Director, defendant Corney has ultimate authority for supervising and
22 implementing all operations and functions of the FBI, including its participation in the Assoeiational
23 Tracking Program. Defendant Corney personally authorizes and supervises the FBI's participation in
24 the Associational Tracking Program.
25 49. Defendant Robert S. Mueller is the previous Director of the FBI, from September,
26 200l-September, 2013. As FBI Director, defendant Mueller had ultimate authority for supervising
27 and implementing all operations and functions of the FBI, including its participation in the
28 9 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
Associational Tracking Program. Defendant Mueller personally authorized and supervised the FBI's
2 participation in the Associational Tracking Program.
3 50. Defendant Lieutenant General (Ret.) James R. Clapper is the Director of National
4 Intelligence (DNI), in office since August of20 I O. Defendant Clapper participates in the activities of
5 the U.S. intelligence community, including the Associational Tracking Program.
6 51. Defendants DOES 1-100 are persons or entities who have authorized or participated in
7 the Associational Tracking Program. Plaintiffs will allege their true names and capacities when
8 ascertained. Upon information and belief each is responsible in some manner for the occurrences
9 herein alleged and the injuries to Plaintiffs herein alleged were proximately caused by the acts or
to omissions of DOES 1-100 as well as the named Defendants.
II
12
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
STATUTORY BACKGROUND
13 52. 50 U.S.C § 1861, the codification of section 215 of the USA PATRIOT Act, as
14 amended, is entitled "Access to certain business records for foreign intelligence and surveillance
15 purposes." Section 1861 provides narrow and limited authority for the Foreign Intelligence
16 Surveillance Court (FISC) to issue orders for the production of "any tangible things (including
17 books, records, papers, documents, and other items) for an investigation to obtain foreign
18 intelligence information not concerning a United States person or to protect against international
19 terrorism or clandestine intelligence activities." The limitations on section 1861 orders include the
20 following:
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• an order may be issued only upon "a statement of facts showing that thcre are
reasonable grounds to believe that the tangible things sought are relevant to an
authorized investigation;"
• the tangible things sought to be produced by an order must be described "with
sufficient particularity to permit them to be fairly identified;" and
• an order "may only require the production of a tangible thing if such thing can be
obtained with a subpoena duces tecum issued by a court ofthe United States in aid of
10 FIRST AMENDED COMPLAINT
CASE NO. I3-cv-3287 JSW
2
3
4 53.
a grand jury investigation or with any other order issued by a court of the United
States directing the production of records or tangible things."
THE ASSOCIATIONAL TRACKING PROGRAM
The Associational Tracking Program is electronic surveillance that collects and
5 acquires telephone communications information for all telephone calls transiting the networks of all
6 major American telecommunication companies, including Verizon, AT&T, and Sprint. Every day,
7 the Associational Tracking Program collects information about millions oftelephone calls made by
8 millions of Americans. This includes information about all calls made wholly within the United
9 States, including local telephone calls, as well as communications between the United States and
10 abroad.
11 54. Defendants' Associational Tracking Program collects and acquires call detail records
12 and comprehensive communications routing information about telephone calls. The collected
13 information includes, but is not limited to, session identifYing information (e.g., originating and
14 terminating telephone number, International Mobile Subscriber Identity (IMSI) number,
15 International Mobile station Equipment Identity (IMEl) number, etc.), trunk identifier, telephone
16 calling card numbers, and time and duration of call. Defendants acquire this information through the
17 use of a surveillance device.
18 55. Beginning in 2001, participating phone companies voluntarily provided telephone
19 communications information for the Associational Tracking program to Defendants. Since 2006, the
20 FISC, at the request of Defendants, has issued orders under 50 U.S.C. § 1861 purporting to compel
21 the production of communications information, including communications information not yet in
22 existence, on an ongoing basis, as part of the Associational Tracking Program.
23 56. As an example, attached hereto as Exhibit A, and incorporated herein by this
24 reference, is an Order issued under 50 U.S.C. § 1861 requiring the production of communications
25 information for use in the Associational Tracking Program.
26 57. DNI Clapper has admitted the Order is authentic, as indicated in Exhibit B, attached
27 hereto and incorporated by this reference.
28 II FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
58. The Order is addressed to Verizon Business Network Services Inc., on behalfofMCI
2 Communications Services Inc., d/b/a Verizon Business Services (individually and collectively
3 "Verizon"). Verizon is one of the largest providers of telecommunications services in the United
4 States with over 98 million subscribers. Through its subsidiaries and other affiliated entities that it
5 owns, controls, or provides services to, Verizon provides telecommunications services to the public
6 and to other entities. These subsidiaries and affiliated entities include Verizon Business Global,
7 LLC; MCI Communications Corpomtion; Verizon Business Network Services, Inc.; MCI
8 Communications Services, Inc.; and Verizon Wireless (Cellco Partnership).
9
10 59.
BULK SEIZURE COLLECTION, ACQUISITION, AND STORAGE
The Associational Tmcking Program seizes, collects and acquires telephone
11 communications infonnation for all telephone calls tmnsiting the networks of all major American
12 telecommunication companies, including Verizon, AT&T, and Sprint.
13 60. The telephone communications infonnation Defendants seize, collcct and acquire in
14 bulk as part of the Associational Tracking Program is retained and stored by Defendants in one or
15 more databases. These databases contain call information for all, or the vast majority, of calls wholly
16 within the United States, including local telephone calls, and calls between the United States and
17 abroad, for a period of at least five years. Defendants have indiscriminately obtained and stored the
18 telephone communications infonnation of millions of ordinary Americans, including Plaintiffs, their
19 members, and staffs, as part of the Associational Tracking Program.
20 61. Defendants' bulk seizure, collection and acquisition of telephone communications
21 infonnation includes, but is not limited to, records indicating who each customer communicates
22 with, at what time, and for how long. The aggregation of this information discloses the expressive,
23 political, social, personal, private, and intimate associational connections among individuals and
24 groups, which ordinarily would not be disclosed to the public or the government.
25 62. Through the Associational Tmcking Progmm, Defendants have seized, collected,
26 acquired, and retained, and continue to seize, collect, acquire, and retain, bulk communications
27 infonnation of telephone calls made and received by Plaintiffs, their members, and their staffs. This
28 12 FmSTAMENDEDCO~LMNT
CASE NO. 13-cv-3287 JSW
information is othelWise private.
2 63. Because of the Associational Tracking Program, Plaintiffs have lost the ability to
3 assure confidentiality in the fact of their communications to their members and constituent.
4 Plaintiffs' associations and political advocacy efforts, as well as those of their members and staffs,
5 are chilled by the fact that the Associational Tracking Program creates a permanent record of all of
6 Plaintiffs' telephone communications with their members and constituents, among others.
7 64. Plaintiffs' associations and political advocacy efforts, as well as those of their
8 members and staffs, are chilled by Defendants' search and analysis ofinformation obtained through
9 the Associational Tracking Program and Defendants' use and disclose of this information and the
10 results of their searches and analyses.
II 65. Plaintiffs' telephone communications information obtained, retained, and searched
12 pursuant to the Associational Tracking Program was at the time of acquisition, and at all times
13 thereafter, neither relevant to an existing authorized criminal investigation nor to an existing
14 authorized investigation to protect against international terrorism or clandestine intelligence
15 activities.
16 66. Defendants' bulk seizure, collection, acquisition, and retention of the telephone
17 communications information of Plaintiffs, their members, and their staffs is done without lawful
18 authorization, probable cause, andlor individualized suspicion. It is done in violation of statutory and
19 constitutional limitations and in excess of statutory and constitutional authority. Any judicial,
20 administrative, or executive authorization (including any order issued pursuant to the business
21 records provision of 50 U.S.C. § 1861) of the Associational Tracking Program or of the acquisition
22 and retention of the communications information of Plaintiffs, their members, and their staffs is
23 unlawful and invalid.
24 67. Defendants' bulk seizure, collection, acquisition, and retention of the telephone
25 communications information of Plaintiffs, their members, and their staffs is done (a) without
26 probable cause or reasonable suspicion to believe that Plaintiffs, their members, and their staffs have
27 committed or are about to commit any crime or engage in any international terrorist activity; (b)
28 13 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or their
2 staffs are foreign powers or agents of foreign powers; and (c) without probable cause or reasonable
3 suspicion to believe that the communications of Plaintiffs, their members, and their staffs contain or
4 pertain to foreign intelligence information, or relate to an investigation to obtain foreign intelligence
5 information.
6 68. Defendants, and each of them, have authorized, approved, supervised, performed,
7 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,
8 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking
9 Program and in the seizure, collection, acquisition, and retention of the telephone communications
10 information of Plaintiffs, their members, and their staffs. Defendants have committed these acts
11 willfully, knowingly, and intentionally. Defendants continue to commit these acts and will continue
12 to do so absent an order of this Court enjoining and restraining them from doing so.
13
14 69.
SEARCH
Through the Associational Tracking Program, Defendants have searched and continue
15 to search communications information of telephone calls made and received by Plaintiffs, their
16 members, and their staffs. Defendants use the communications information acquired for the
17 Associational Tracking Program for a process known as "contact chaining" - the construction of an
18 associational network graph that models the communication patterns of people, organizations, and
19 their associates.
20 70. As part of the Associational Tracking Program, contact chains are created both in an
21 automated fashion and based on particular queries. Contact chain analyses are typically performed
22 for two degrees of separation (or two "hops") away from an intended target. That is, an associational
23 network graph would be constructed not just for the target of a particular query, but for any number
24 in direct contact with that target, and any number in contact with a dircct contact of the target.
25 Defendants sometimes conduct associational analyses up to three degrees of separation ("three
26 hops") away.
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28
71. The searches include Plaintiffs' communications information even ifplaintiffs are not
14 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
targets of the government and even if they are not one, two or more "hops" away from a target. All
2 telephone communications infonnation is searched as part ofthe Associational Tracking Program.
3 72. Plaintiffs' telephone communications infonnation searched pursuant to the
4 Associational Tracking Program was, at the time of search and at all times thereafter, was neither
5 relevant to an existing authorized criminal investigation nor to an existing authorized investigation to
6 protect against international terrorism or clandestine intelligence activities.
7 73. Defendants' searching of the telephone communications infonnation of Plaintiffs is
8 done without lawful authorization, probable cause, and/or individualized suspicion. It is done in
9 violation of statutory and constitutional limitations and in excess of statutory and constitutional
10 authority. Any judicial, administrative, or executive authorization (including any business records
II order issued pursuant 50 U .S.C. § 1861) of the Associational Tracking Program or ofthe searching
12 of the communications infonnation of Plaintiffs is unlawful and invalid.
13 74. Defendants' searching of the telephone communications infonnation of Plaintiffs is
14 done (a) without probable cause or reasonable suspicion to believe that Plaintiffs, their members, or
15 their staffs, have committed or are about to commit any crime or engage in any international terrorist
16 activity; (b) without probable cause or reasonable suspicion to believe that Plaintiffs, their members,
17 or their staffs are foreign powers or agents of foreign powers; and (c) without probable cause or
18 reasonable suspicion to believe that Plaintiffs', their members', or their staffs' communications
19 contain or pertain to forcign intelligence information or relate to an investigation to obtain foreign
20 intelligence information.
21 75. Defendants, and each of them, have authorized, approved, supervised, performed,
22 caused, participated in, aided, abetted, counseled, commanded, induced, procured, enabled,
23 contributed to, facilitated, directed, controlled, assisted in, or conspired in the Associational Tracking
24 Program and in the search or use of the telephone communications information of Plaintiffs, their
25 members, and their staff. Defendants have committed these acts willfully, knowingly, and
26 intentionally. Defendants continue to commit these acts and will continue to do so absent an order of
27 this Court enjoining and restraining them from doing so.
28 15 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
INJURY COMMON TO ALL PLAINTIFFS
2 76. Each and every Plaintiff is informed and believes that its associational activities have
3 been hanned since the existence of the Associational Tracking Program became publicly known.
4 Each Plaintiff has experienced a decrease in communications from members and constituents who
5 had desired the fact of their communication to Plaintiff to remain secret, especially from the
6 government and its various agencies, or has heard employees, membcrs or associates express
7 concerns about the confidentiality of the fact of their communications with Plaintiffs. Those
8 Plaintiffs who operate hotlines have observed a decrease in calls to the hotlines and/or an increase in
9 callers expressing concern about the confidentiality of the fact of their communications. Since the
10 disclosure of the Associational Tracking Program, Plaintiffs have lost the ability to assure their
11 members and constituents, as well as all others who seek to communicate with them, that the fact of
12 their communications to Plaintiffs will be kept confidential, especially from the federal government,
13 including its various agencies. This injury stems not from the disclosure of the Associational
14 Tracking Program, but from the existence and operation of the program itself. Before the public
15 disclosure of the program, Plaintiffs' assurances of confidentiality were illusory.
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17
77. For instance, these specific Plaintiffs experienced the following:
(a) Plainitff First Unitarian has a proud history of working for justice and
18 protecting people in jeopardy for expressing their political views. In the 1950s, it resisted the
19 McCarthy hysteria and supported blacklisted Hollywood writers and actors, and fought California's
20 'loyalty oaths' all the way to the Supreme Court. And in the 1980s, it gave sanctuary to refugees from
21 civil wars in Central America. The principles of its faith often require the church to take bold stands
22 on controversial issues. Church members and neighbors who come to the church for help should not
23 fear that their participation in the church might have consequences for themselves or their families.
24 This spying makes people afraid to belong to the church community.
25 (b) PlaintiffCalguns Foundation runs a hotline for that allows the general public
26 to call to ask questions about California's byzantine firearms laws. It has members who would be
27 very worried about having their calls taped and stored by NSAlFBI when they're enquiring about
28 16 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
whether firearms and parts they possess are felonious in California. It has a phone number
2 specifically so people or their loved ones can call fromjail becaues Californians are often arrested
3 for actually innocent possession oruse of firearms.
4 (c) PlaintiffNLG notes that much of its work involves cases (some high profile)
5 involving individuals who have been charged with aiding terrorism or who have been monitored by
6 the FBI and Joint Terrorism Task Forces for their political activism. Knowledge that its email and
7 telephonic communications may likely be monitored has resulted in restricting what its employces
8 and members say over the telephone and in email about legal advocacy and work related to NLG
9 litigation or legal defense committees. In several instances, it has had to convene in-person meetings
10 to discuss sensitive matters. One example is its "Green Scare" hotline for individuals contacted by
II the FBI, either as targets or in relation to environmental or animal rights cases. NLG immediately
12 advises Hotline callers that the line may not be secure, asks limited information before referring
13 callers to specific NLG attorneys in their geographic area, and does not keep notes or records of the
14 calls. One foundation funder asks for records of Hotline calls, but in response the NLG can only send
15 general examples of the types of calls it receives.
16 (d) Plaintiff Human Rights Watch conducts research and advocacy such that its
17 effectiveness and credibility depend heavily on being able to interview those with direct knowledge
18 of human rights abuses, be they victims, witnesses, perpetrators, or knowledgeable bystanders such
19 as government officials, humanitarian agencies, lawyers and other civil society partners. Because
20 this type of research and reporting can endanger people and organizations, our stakeholders-
21 ineluding even our researchers and/or consultants--often require us to keep their identities or other
22 identifying information confidential. HRW has staff in these offices who talk to the above-
23 mentioned types of stakeholders by telephone to conduct research. HR W is concerned that many of
24 these stakeholders will have heightened concerns about contacting us through our offices now that
25 we are aware the NSA is logging metadata of these calls. This impairs HRW's research ability
26 and/or causes HRW to rely more on face-to-face encounters or other costly means of holding secure
27 conversations.
28 17 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
(e) Plaintiff Shalom Center's Executive Director, Rabbi Arthur Waskow, was
2 subjected to COINTELPRO activity (warrantless searches, theft, forgery) by the FBI between 1968
3 and 1974. He took part in a suit against the FBI and the Washington DC police (Hobson v. Wilson)
4 for deprivation of the "right of the people peaceably to assemble." Rabbi Waskow won in DC
5 Federal District Court and the part of the suit that focused on the FBI was upheld in the DC Circuit
6 Court of Appeals. The result of this experience is that he has been very troubled and frightened by
7 the revelations of warrantless mass searches of telephone and Internet communications by the NSA.
8 For several weeks, as the revelations continued, Rabbi Waskow realized the likelihood that the
9 organization he leads, the Shalom Center, and he were under illegitimate surveillance and-
10 because of its involvement in legal and nonviolent opposition to US government policy in several
II fields - possibly worse. This realization made him rethink whether he wanted to continue in sharp
12 prophetic criticism and action in regard to disastrous public policies. Rabbi Waskow had trouble
13 sleeping, delayed some essays and blogs he had been considering, and worried whether his actions
14 might make trouble for nonpolitical relatives. Rabbi Waskow certainly felt a chill fall across his
15 work of peaceable assembly, association, petition, and the free exercise of his religious convictions.
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COUNT I
Violation of First Amendment-Declaratory, Injunctive, and Other Equitable Relief (Against All Defendants)
78. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding
paragraphs of this complaint, as if set forth fully herein. 20
21 79. Plaintiffs, their members, and their staffs use telephone calls to communicate and to
associate within their organization, with their members and with others, including to communicate 22
anonymously and to associate privately. 23
24 80. By their acts alleged herein, Defendants have violated and are violating the First
Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, 25
including the right to communicate anonymously, the right to associate privately, and the right to 26
engage in political advocacy free from government interference. 27
28 81. By their acts alleged herein, Defendants have chilled andlor threaten to chill
18 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 the legal associations and speech of Plaintiffs, their members, and their staffs by, among other
2 things, compelling the disclosure of their political and other associations, and eliminating Plaintiffs'
3 ability to assure members and constituents that the fact of their communications with them will be
4 kept confidential.
5 82. Defendants are irreparably harming Plaintiffs, their members, and their staffs by
6 violating their First Amendment rights. Plaintiffs have no adequate remedy at law for Defendants'
7 continuing unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless
8 enjoined and restrained by this Court.
9 83. Plaintiffs seek that this Court declare that Defendants have violated the First
10 Amendment rights of Plaintiffs, their members, and their staffs; enjoin Defendants, their agents,
11 successors, and assigns, and all those in active concert and participation with them from violating the
12 First Amendment to the United States Constitution; and award such other and further equitable relief
13 as is proper.
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COUNTll
Violation of Fourth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants)
84. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1
through 66 of this complaint, as ifset forth fully herein. 18
19 85. Plaintiffs have a reasonable expectation of privacy in their telephone communications,
including in their telephone communications information. 20
21 86. By the acts alleged herein, Defendants have violated Plaintiffs' reasonable
expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and 22
seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, 23
but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated 24
Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any 25
search and seizure as guaranteed by the Fourth Amendment. 26
27 87. Defendants are now engaging in and will continue to engage in the above-described
violations of Plaintiffs' constitutional rights, and are thereby irreparably harming Plaintiffs. 28 19
FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW
Plaintiffs have no adequate remedy at law for Defendants' continuing unlawful conduct, and
2 Defendants will continue to violate Plaintiffs' legal rights unless enjoined and restrained by this
3 Court.
4 88. Plaintiffs seek that this Court declare that Defendants have violated their Fourth
5 Amendment rights; enjoin Defendants, their agents, successors, and assigns, and all those in active
6 concert and participation with them from violating the Plaintiffs' rights under the Fourth
7 Amendment to the United States Constitution; and award such other and further equitable reliefas is
8 proper.
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II
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COUNT III
Violation of Fifth Amendment-Declaratory, Injunctive, and Equitable Relief (Against All Defendants)
89. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs 1
13 through 66 of this complaint, as if set forth fully herein.
14 90. Plaintiffs, their members, and their staffs have an informational privacy interest in
15 their telephone communications information, which reveals sensitive information about their
16 personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the
17 public or the government. This privacy intcrest is protected by state and federal laws relating to
privacy of communications records and the substantive and procedural right to due process 18
guaranteed by the Fifth Amendment. 19
20 91. Defendants through their Associational Tracking Program secretly seize, collect,
acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their 21
members, and their staff without providing notice to them, or process by which they could seek 22
redress. Defendants provide no process adequate to protect their interests. 23
24 92. Defendants seize, collect, acquire, retain, search, and use the bulk telephone
communications information of Plaintiffs, their members, and their staff without making any 25
showing of any individualized suspicion, probable cause, or other governmental interest sufficient or 26
narrowly tailored to justify the invasion of Plaintiffs' due process right to informational privacy. 27
28 93. Defendants seize, and acquire thc bulk telephone communications information of
20 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
Plaintiffs, their members, and their staffunder, inter alia, section 215 of the USA-PATRIOT Act (50
2 U.S.C. § 1861).
3 94. On infonnation and belief, Defendants' infonnation seizure, collection and acquisition
4 activities rely on a secret legal interpretation of 50 U.S.C. § 1861 under which bulk telephone
5 communications information of persons generally is as a matter of law deemed a "tangible thing"
6 "relevant" to "an investigation to obtain foreign intelligence information not concerning a United
7 States person or to protect against international terrorism or clandestine intelligence activities," even
8 without any particular reason to believe that telephone communications information is a "tangible
9 thing" or that the telephone communications information of any particular person, including
10 Plaintiffs, their members, and their staff, is relevant to an investigation to obtain foreign intelligence
11 information not concerning a U.S. person or to protect against international terrorism or clandestine
12 intelligence activities.
13 95. This legal interpretation of 50 U.S.C. § 1861 is not available to the general public,
14 including Plaintiffs, their members, and their staff, leaving them and all other persons uncertain
15 about where a reasonable expectation of privacy from government intrusion begins and ends and
16 specifically what conduct may subject them to electronic surveillance.
17 96. This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the
18 FISA statutory scheme that insulate legal interpretations from public disclosure· and adversarial
19 process, fails to establish minimal guidelines to govern law enforcement and/or intelligence seizure
20 and collection.
21 97. The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking
22 Program and related surveillance programs causes section 1861 to be unconstitutionally vague in
23 violation of the Fifth Amendment and the rule oflaw. The statute on its face gives no notice that it
24 could be construed to authorize the bulk. seizure and collection of telephone communications
25 information for use in future investigations that do not yet exist.
26 98. By these and the other acts alleged herein, Defendants have violated and are
27 continuing to violate the right to due process under the Fifth Amendment of Plaintiffs, their
28 21 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
members, and their staff.
2 99. By the acts alleged herein, Defendants' conduct proximately caused hann to Plaintiffs.
3 100. On information and belief, Defendants are now engaging in and will continue to
4 engage in the above-described violations of Plaintiffs' constitutional rights, and are thereby
5 irreparably hanning Plaintiffs. Plaintiffs have no adequate remedy at law for Defendants' continuing
6 unlawful conduct, and Defendants will continue to violate Plaintiffs' legal rights unless enjoined and
7 restrained by this Court.
8 101. Plaintiffs seek that this Court declare that Defendants have violated their due process
9 rights under the Fifth Amendment to the United States Constitution; enjoin Defendants, their agents,
10 successors, and assigns, and all those in active concert and participation with them from violating the
11 Plaintiffs' due process rights; and award such other and further equitable relief as is proper.
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COUNT IV
Violation of 50 U.S.C. § 1861-Declaratory, Injunctive and Other Equitable Relief (Against All Defendants)
102. Plaintiffs repeat and incorporate herein by reference the allegations in paragraph I
16 through 66 of this complaint, as ifset forth fully herein.
17 103. The business records order provision set forth in 50 U.S.C. § 1861 limits Defendants'
ability to seek telephone communications information. It does not permit the suspicionless bulk 18
seizure and collection of telephone communications information unconnected to any ongoing 19 20 investigation. It does not permit an order requiring the production of intangible things, including
21 telephone communications information not yet in existence.
22 104. Defendants' Associational Tracking Program and the seizure, collection, acquisition,
retention, searching, and use ofthe telephone communications records of Plaintiffs, their members, 23
and their staff exceed the conduct that may be lawfully authorized by an order issued under 50 V.S.C 24 25 § 1861.
26 105. By the acts alleged herein, Defendants are acting in excess of their statutory authority
and in violation of the express statutory limitations and procedures Congress has imposed on them in 27 28 50 V.S.C. § 1861.
22 FIRST AMENDED COMPLAINT
CASE NO. I3-cv-3287 JSW
106. Sovereign immunity for this claim is waived by 5 U.S.C. § 702.
2 107. Defendants are now engaging in and will continue to engage in the above-described
3 acts in excess of Defendants' statutory authority and in violation of statutory limitations and
4 procedures of 50 U .S.C. § 1861 and are thereby irreparably harming Plaintiffs. Plaintiffs have no
5 adequate remedy at law for Defendants' continuing unlawful conduct, and Defendants will continue
6 to violate Plaintiffs' legal rights unless enjoined and restrained by this Court.
7 108. Plaintiffs seek that this Court declare that Defendants have acted in excess of
8 Defendants' statutory authority and in violation of statutory limitations and procedures of 50 U.S.C.
9 § 1861; declare that Defendants have thereby irreparably harmed and will continue to irreparably
10 harm Plaintiffs; enjoin Defendants, their agents, successors, and assigns, and all those in active
II concert and participation with them from acting in excess of Defendants' statutory authority and in
12 violation of statutory limitations and procedures of 50 U .S.C. § 1861; and award such other and
13 further equitable relief as is proper.
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COUNT V
Motion For Return Of Unlawfully Searched And Seized Property Pursuant To Federal Rule of Criminal Procedure 41(g)
109. Plaintiffs repeat and incorporate herein by reference the allegations in paragraphs I
through 97 of this complaint, as if set forth fully herein. 18
19 110. This Court has civil equitable jurisdiction under Federal Rule of Criminal
20 Procedure 41(g) to order the return of illegally searched and seized property.
21 Ill. Defendantst by their Associational Tracking Program and their bulk seizuret
collection, acquisitiont retentiont searching, and use ofthe telephone communications information of 22
Plaintiffs, have unlawfully searched and seized Plaintiffs' telephone communications information. 23
Plaintiffs are aggrieved by Defendants unlawful seizure and search of their telephone 24
communications information. 25
26 112. Plaintiffs seek an order directing the return of their telephone communications
information in the possession, custody, or control of Defendants, their agents, successors, and 27
assigns, and all those in active concert and participation with them. 28 23
FIRST AMENDED COMPLAINT CASE NO. 13-cv-3287 JSW
PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs respectfully request that the Court:
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Declare that the Program as alleged herein violates without limitation Plaintiffs'
rights under the First, Fourth, and Fifth Amendments to the Constitution; and their
statutory rights;
Award to Plaintiffs equitable relief, including without limitation, a preliminary and
permanent injunction pursuant to the First, Fourth, and Fifth Amendments to the
United States Constitution prohibiting Defendants' continued use of the Program,
and a preliminary and permanent injunction pursuant to the First, Fourth, and Fifth
Amendments requiring Defendants to provide to Plaintiffs an inventory of their
communications, records, or other information that was seized in violation of the
First, Fourth, and Fifth Amendments, and further requiring the destruction of all
copies of those communications, records, or other information within the possession,
custody, or control of Defendants.
Award to Plaintiffs reasonable attorneys' fees and other eosts of suit to the extent
permitted by law.
Order the return and destruction oftheir telephone communications information in
the possession, custody, or control of Defendants, their agents, successors, and
assigns, and all those in active concert and participation with them.
Grant such other and further relief as the Court deems just and proper.
21 DATED: September 10,2013
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Respectfully submitted,
/s/ Cindy Cohn
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CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARKRUMOLD DAVID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION
24 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
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RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III THE MOORE LAW GROUP
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP
ARAM ANT ARAMIAN LAW OFFICE OF ARAM ANT ARAMIAN
Attorneys for Plaintiffs
25 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
1 JURY DEMAND
2 Plaintiffs hereby request a jury trial for all issues triable by jury including, but not limited to,
3 those issues and claims set forth in any amended complaint or consolidated action.
4 DATED: September 10,2013
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Respectfully submitted,
lsi Cindy Cohn CINDY COHN LEE TIEN KURT OPSAHL MATTHEW ZIMMERMAN MARK RUMOLD DA YID GREENE JAMES S. TYRE ELECTRONIC FRONTIER FOUNDATION
RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE
THOMAS E. MOORE III THE MOORE LAW GROUP
RACHAEL E. MENY MICHAEL S. KWUN BENJAMIN W. BERKOWITZ KEKER & VAN NEST, LLP
ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN
Attorneys for Plaintiffs
26 FIRST AMENDED COMPLAINT
CASE NO. 13-cv-3287 JSW
Case3:l3-cv-03287 -JSW Document86-4 Filed03/l0/l4 Pagel of 3
Exhibit C
Exhibit C
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2
3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
4 ) CAROLYN JEWEL et al., )
5 ) Case No. C:08-cv-4373-VRW JJlaintttr.S, )
6 ) v. )
7 ) NATIONAL SECURITY AGENCY et al., )
8 ) Chief Judge Vaughn R. Walker )
9 Defendants ) )
10 )
11
12 (PR8P88tiBIORDER
13 Upon consideration of the parties' joint motion for entry of an order regarding the
14 preservation of evidence and good cause appearing, the Court hereby ENTERS the following
15 order based on the Court's prior Order of November 6,2007, in 06-cv-1791-VRW (Dkt. 393).
16 A. The Court reminds all parties of their duty to preserve evidence that may be
17 relevant to this action. The duty extends to documents, data and tangible things in the
18 possession, custody and control of the parties to this action, and any employees, agents,
19 contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated to
20 be subject to discovery in this action. Counsel are under an obligation to exercise efforts to
21 identify and notify such non-parties, including employees of corporate or institutional parties.
22 B. "Documents, data and tangible things" is to be interpreted broadly to include
23 writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes,
24 electronic messages, voicemail, e-mail, telephone message records or logs, computer and
25 network activity logs, hard drives, backup data, removable computer storage media such as tapes,
26 disks and cards, printouts, document image files, web pages, databases, spreadsheets, software,
27 books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements, worksheets,
28 Joint Motion Cor Entry oCOrder Regarding Preservation oCEvldence Jewel el aL v. Nadonal Security Agency el al., Case No. 08-cv-4373-VRW
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summaries, compilations, computations, charts, diagrams, graphic presentations, drawings, films,
digital or chemical process photographs, video, phonographic, tape or digital recordings or
transcripts thereof, drafts, jottings and notes. Information that serves to identify, locate, or link
such material, such as file inventories, file folders, indices and metadata, is also included
in this definition.
C. "Preservation" is to be interpreted broadly to accomplish the goal of maintaining the
integrity of all documents, data and tangible things reasonably anticipated to be subject to
discovery under FRCP 26, 45 arid 56( e) in this action. Preservation includes taking reasonable
steps to prevent the partial or full destruction, alteration, testing, deletion, shredding,
incineration, wiping, relocation, migration, theft, or mutation of such material, as well as
negligent or intentional handling that would make material incomplete or inaccessible.
D. Counsel are directed to inquire of their respective clients if the business or
government practices of any party involve the routine destruction, recycling, relocation, or
mutation of such materials and, ifso, direct the party, to the extent practicable for the pendency
of this order, either to
(1) halt such business or government practices;
material, suitable for later discovery if requested.
Counsel representing each party shall, not later than December 15, 2009, submit to the
Court under seal and pursuant to FRCP 11, a statement that the directive in paragraph D, above,
has been carried out.
IT IS SO ORDERED.
Dated: Nov. 13 ,2009.
Case3:l3-cv-03287-JSW Document86-5 Filed03/l0/l4 Pagel of 5
Exhibit D
Exhibit D
1
2
3
4
5
6
7
8
9
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
11 IN RE:
12 NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS
13 LITIGATION
14
15
16
17
This Document Relates To:
ALL CASES ____________________________ 1
MDL Docket No 06-1791 VRW
ORDER
5 18 J.L.
19 Plaintiffs have moved for an order proh1biting the
20 alteration or destruction of evidence during the pendency of this
21 action. MDL Doc # 384. The United States has filed papers
22 opposing the motion, Doc # 386, and has prepared and lodged with
23 the court a confidential submission designed for ex parte, in
24 camera review. Doc # 387. Telephone company defendants AT&T,
25 Cingular, Bellsouth, Sprint and Verizon have joined in the United
26 States's opposition to plaintiffs' motion. Doc # 365, 388, 390. 27 Upon careful review of the non-confidential papers
28 submitted in support of and in opposition to the motion, the court
has determined that (1) no hearing on the motion is necessary; (2)
2 an order requiring the preservation of evidence is appropriate; and
3 (3) an interim order shall forthwith enter requiring the parties to
4 take steps to prevent the alteration or destruction of evidence as
5 follows:
6 A. Until the issues in these proceedings can be further
7 refined in light of the guidance and directives anticipated to be
8 received upon appellate review of the court's decision in Hepting v
9 AT&T Corporation, 439 F Supp 974 (N D Cal 2006) and of the Oregon
10 district court's decision in Al-Haramain Islamic Foundation, Inc v ~
Os 11 Bush, 451 F Supp 2d 1215 (D Or 2006), the court reminds all parties t::cS == e ~ 12 of their duty to preserve evidence that may be relevant to this U U ..,c.... 'C ~ 13 action. The duty extends to documents, data and tangible things in tl°.E So~ 14 the possession, custody and control of the parties to this action, WlQ ~ e 15 and any employees, agents, contractors, carriers, bailees or other = C1) 00'::; ~ ~ 16 non-parties who possess materials reasonably anticipated to be !Z ;5 J3 17 subject to discovery in this action. Counsel are under an
.... ~ 18 obligation to exercise efforts to identify and notify such non-
19 parties, including employees of corporate or institutional parties.
20 B. "Documents, data and tangible things" is to be
21 interpreted broadly to include writings, records, files,
22 correspondence, reports, memoranda, calendars, diaries, minutes,
23 electronic messages, voicemail, e-mail, telephone message records
24 or logs, computer and network activity logs, hard drives, backup
25 data, removable computer storage media such as tapes, disks and
26 cards, printouts, document image files, web pages, databases,
27 spreadsheets, software, books, ledgers, journals, orders, invoices,
28 bills, vouchers, checks, statements, worksheets, summaries,
2
aseCMstSIMQ:li1932eItll4SWDdimmlardrS88-5 Rled03l4lDJLQ()O'fagekgeSJ of 4
1 compilations, computations, charts, diagrams, graphic
2 presentations, drawings, fi1ms, digital or chemical process
3 photographs, video, phonographic, tape or digital recordings or
4 transcripts thereof, drafts, jottings and notes. Information that
5 serves to identify, locate, or link such material, such as file
6 inventories, file folders, indices and metadata, is also included
7 in this definition.
8 C. "Preservation" is to be interpreted broadly to
9 accomplish the goal of maintaining the integrity of all documents,
10 data and tangible things reasonably anticipated to be subject to
11 discovery under FRCP 26, 45 and 56(e) in this action. Preservation
12 includes taking reasonable steps to prevent the partial or full
13 destruction, alteration, testing, deletion, shredding,
14 incineration, wiping, relocation, migration, theft, or mutation of
15 such material, as well as negligent or intentional handling that
16 would make material incomplete or inaccessible.
17 D. Counsel are directed to inquire of their respective
18 clients if the business practices of any party involve the routine
19 destruction, recycling, relocation, or mutation os such materials
20 and, if so, direct the party, to the extent practicable for the
21 pendency of this order, either to
22 (1) halt such business processes;
23 (2) sequester or remove such material from the business
24 process; or 25 (3) arrange for the preservation of complete and accurate
26 duplicates or copies of such material, suitable for later discovery
27 if requested.
28 \ \
3
CIS ·s t:cS :s:':: o CIS uC,) _c.... y 0 :s :u .~ E =.!!l (1)0 ~ e tU (!) -..c fI'.lt: 'Co ~Z = (!) i:J-5 ...
0 ~
asaM~Ii8Q:1r1932eJiiP46WDdilmImBTEhS96-5 Filed(]3lLrm'lB()OPagB~!i of 4
The most senior lawyer or lead trial counsel representing
2 each party shall, not later than December 14, 2007, submit to the
3 court under seal and pursuant to FRCP 11, a statement that the
4 directive in paragraph D, above, has been carried out.
5 The clerk is directed to vacate the hearing now scheduled
6 for November 15, 2007 in this matter.
7
8 IT IS SO ORDERED.
9
10 VAUGHN R WALI<ER
11 United States District Chief Judge
12
13
14
15
16
17
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20
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22
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24
25
26
27
28
4
Case3:l3-cv-03287-JSW Document86-6 Filed03/l0/l4 Pagel of 8
Exhibit E
Exhibit E
" :Ca$e3:13.:.cv-O~87-JSW· Document86-6 Filed03/10/14 .Page2 of 8 ,,' ,: .... .
C!ridYQO'hri~iJ:t,dY@~~~O'r~::. ' .. " .. : March 10,2014 8:35 AM To:: ~Ia~rm~,n ... Marcia' (CIVt. <Marci!!.Berman@,usdoj.goV>. ,
" Cc: lI~illigari;:, . .:Iim '(Ci"),, <:James,GUilgan@u,sdoj.gov>, "[email protected]" <w18,be@p'acbe.U:ne1>.,.Stephanle Shattuck·<st~ph@eftorQ>, "Thomas'E. Moore III
· (tmoore~rlJoo.rela\\1~ani.coin)n <[email protected]~, I~Patton, Rodney (CIV)" , , . <~odney~patt.~i,.~us~oj~g6~,. "Dearinger;' B~an (CIV)" <[email protected]>, "lIann M:
.' Maazel" <imaazel@~cbalaw.com> .. " . ., . , . ~~:: ~r~se'rV~t~9r:i ·of EVi.derice ,in J~W$I v. NSA !!nd First Unitarian Church v. NSA
. Secu~i,ty:O,'Sign~Q ([email protected]) '. .
. '.:
.. -':, .. -- .. -. ............
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, Dear, ~arcY" .. :.,
., r'~ 'soni~t we ~~d n9t hear from you after· my' message on'Saturday asking for further , .'. clarifit;:;atio~:,ab.Q'\it 'how the ,government plans to ensure that it. does not spoliate eviden~e. ,'Unless.we:,liear frpm Y9U by noon QaIifomta: time today that-the government does not
· 1ntend"to"q.e'stroy:evi4,en~e,tha:t may·be likely to.lead to the discovery:ofadmissible evidence Under the clai1nsrmsed"in·Je;Nel'and First Urutarian cases,. we intend to·.seek a TRO from . 'JUage:Whife>:,· '"." . ' ., . . . . . "';' ", ......... ,.
: Piea~~ ~~"9~~'e~~ ~~'if'~~~~d,like' t~ ,discuss thi~ furthe~.· My ~ellphone ,'is 415-307~2148; ,We,hayeri.Q·d.cisire;t6.el~vate this:int.o ail.:emergency matter before·the court but believe we
, ,Qave ·no·c~olce"Qased u.pon, the goverru:nent!s· actions ,and statements so far. ." " .• I! :.' _ ~. .; . • '.' '. . .
. ': 'CiI:ldy : .. , ': ,.'., :';'.': ,,' ,. ,. " , .
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<;l troubling to us, as is your notice to the. court in First
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'Cas,e3:13-cv-03287-JSW Document86-6 Filed03/10/14 Page3 of 8
, Cindy Gohn'<Cjndy@eff~org;' , March 8, 2014 11:43 AM , Tq:!"B"e~'arii'Mi¥gia (CIV)II, <[email protected]> , , Cc:,lIqUlIg;in, ~ir:n,(CIV)!' <[email protected]>, "[email protected]" c<"\AIiQh,Q(aJ~n::'lrhQ Stephanle9hatt~~k'[email protected]>, "Thomas E. Moore III ([email protected])"
, <tl'Doo.re,@.mobr~law:tea~,corn>,: "Patton, Rodney (CIV)" <[email protected]>, "Dearinger, Brya~' (CIV) .... <Bryar;l.Dearinger@usdoj:goV>; "lianh M. Maazel" <[email protected]> Ae: Preservatlorr of "Evidence In Jewel v. NSA Seq~nty: fi'Sig'n~d (ciridy@eff:org)
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'.' . Dear Marcy, " , ,'.,.' :,'
" '
: Y~urre,sPQnse is'co:Ofusing a,nd troubling to us, as is your, notice to the court in First Ul?itari~'thatyouJriteitd"to'be~n to destroy call detail records on Tuesday, March 11, wPich i~,Jt;lst:,two ~us41ess days.from now. To, ~e clear, ~e only court ~at can relieve the ,goy~riUn,ent":Qf its 'oQligationsto :preserv~ evide~ce in our cases! regardless of the basis',for ~o~e',0qliga.:Qo~s;'is,~e'Northem,Distrlct of Cali(ornia and it-has not done so. This is true in: JeWei, and 'iIl'fji~~,Unit8ri8ri.:, " " " " " ,
A~ you, ~9W.'bofp,:J~ei v;:~SA ~d First Unitarian Churchv. NSA arise from the ongoing ,bu1k,c611~ction,oftelephone records, as did, Heptfug'and the,other MDL cases before that ,(along:with additiona:i.infortnatlon at issue in'Jewel thafmust also be preserved). Neither the co~pla,futs p:or:th~ prote~tive order mention the "President's Surveillance, Program" so
" ,You~',referenc~r.to,~ 'program i,s' con~sing.: T~e d~sarise:fr,om ,the :actual activity of ':", "btilk, ~'~~e~~o~:,anW s~t¢::ongoiiig '<;:l.ainis ,regardless' of .the legal or exec;;utive a4'thority
, , undeJ;: wrucli't!te 'goyerrimerit cl~s'it condUCts that,a~tivity,,~t any, pO,int in "time. '
, :'" M~'~~~ye~;~~~'~~',~~~',~~dei~~d:~O~ ~~ 'preselVatiori ord~r,~:place iit,'~~~el (~d, '~, , Sliu'Qei:t;):dtJes',not 'al~o include -the preservation of the records at issue, in First Unitarian. ,: W-e, fUt,thet :do n;6t'u,ridex;standwhy the government failed to inform ~e FISC of your duties " in,Jewel arid Shuberfsince' they 'require you ,to preserve'the same records or why 'it waited
, ,ui1ti1just:befor~' t#e:deadline, to:se~kdarity'<?n this i~sue. ,resultin'g in ail apparent , ,em~rgen~ s~tuatiori,:that,cQl.l1d easily have 'been avoi4ed." ", ", '
..... .. ".:. '.. .... . .' . .
, , : W~'~'s~~k',cl~c~ti6~ 'from J~dge Whit~ o'n ~s:.but we urge you Qot to destroy any ': ',records' ret~vant t~ o,trr,"clalnis ,in ~i~er case untilw~ can do so" Please do provide us with ''fuJl.,~oI"Inationso,thatwe'~annarrow'thei~sues before the Court. Frankly, your.email to ,'" ~e,y~t~dai and:~g 'in t:p:e F,ii'st"Uriitarian'~ase yesterday ~aise mor~ conc~,ms. not less,
, " ': ,', 'that':the:,gove~~~t :has not been fulfilling'its duties to preserve relevant evidence in either , " . 'ca~e. Please"note 'that we ,will seek 'all av.ailable remedies if it turns out that the
, " goyeri:i:me,nt"J;i~~'n9t abic;leci,by Jt~ duties. ' ' , ;. , • • • '. • ',_0 "
" '0
.,', Cindy' " ,
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. '. ." ~. Ca~e3~13-Cv-:03287-JSW pOGument86-6 Filed03/10/14. Page4 of 8
On. Mar 7~'2014,'ai 6:'14 PM, "i3erm~. Marcia (CIV)" <Mal·cja.Bermal1:(I~usctoj.gov> wrote:
· C.lndy --In respooseto your. questions regarding the preservation orders in jewel (~nd the prior · H~Ptlh.g.cie·cis.i(;9t. t~e Governr'nent'~ motioh·to the FISC, and the FISC's. decision today, addr~ssed the nic~nt litigClt~on ~haltenging the FISC-authorized· 'telephony metadata collection under Section 21'S-.IJtigatio.n asto which the:re are no preservation orders. As' we indicated last week, the Government's moti.on did not address the'pendlng Jewel (and Shubertllitigation because the district court had preyiouslyentered' preserVation orders applicable to those cases. As we ~Iso indicated, since the entry qHhose 'orders the.Government has complied with our preservation obligations in t.hose·cases. At 'the .tim~ the preservation issue was first litigated in the MOL proceedings in 2007, the Goverr'!ment s'ubmitted a.classified ex parte, in camera declaration addressing in detail the steps ta.ken to- meeloiJr p'r~servatiolJ obligations. Because the activities undertaken in connection with tl:i~Pr~$i.dE!nf"s·SLini~l.I!an.ce·Progr<lITi (PSP) we~e not de.classified until.o~cember 2013, we were not · iihie .to '¢onsiJlt with, Y(l1j··pievidusIY about the specific preservation steps that have. been taken with. · r~spectto the Je~~l.Iitigation·. 'However, the Government described for the district court in 2007 how it was' meeting 'its prese..:vationobligations, including with resp.ect to the'jnformation concerning the PSP'activities de~lassified last December .. We have been working with our clients to prepare an
' .. u'ndassified"sum'tn~ry of.the 'preservation steps described to the court in 2007 so that we can . address :V.our queStio~sin·~n orderly fashion ~lth Judge White, if you continu'e to: believe that is
necessary. . .
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'. Thanks.-;:Marcv. .. ···
· ::~_' . .';': :.~ ':'. ··~:~L~ ... ~.:.:...~. ,: ___ ~., ........ , .... , ....... " ..... ~:,' ..... , ..... : .......... -..... _ ............. ~.:. ___ ..... .,.. .. . .' F'f91ta::Serman{MarC:.ia :(CI0·: ':": ' .. :'
,,: 'sent:'Fr;'day; March 07/2014.6:14 PM . T9: .CinQy·~hn ". . .' '. . . . . Cc:-·GUligaf.l/:lim·(CIV)i·[email protected]; Stephanie Shattuck; Thomas E. Moore III
. ([email protected]); Patton, Rodney (CIV); Oea'ringer, Bryal'1 (CIV); Ilann M. Maazel · Subject: ··Fw: i'reServC!t1on of'EvidE;!nce in Jewel v. NSA . . . .
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:~ :., .... din~y''''' w~~kgi~b~~k·.tO~.Y~·Li.on·this-tOd~~, h~pefully within an ho:ur. Thanks -:" Marcy '.' .' ., '0 ., ' •
. . ;'. 'F~~~: o;~ng~~~~~~~-{ciy)·:·,···"~·'·:·.·:'" :.c ........ :., ..... ..
. . .$ent: FriqaYi.Miuch.07, 2014.4:39 PM., . :To: Berma.n/Matcia (CIV) . . .
Su·bjeCt;· fW: 'Preservation of E";idenc~.in Jewel v.NSA ':' ... ,.:.~. . .. :':: .. -~ .... : .' :-. ~"".:."
• ••• '_ •••• : • ..li • .-•• _._ ~._ .............. ~ .. _._.
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;'~~~';'~Ci~d;"Coh~ ·t~~jlt;;;ciridy@eff!~rgl··- ... .. '$ent:JtldaY'-'-March07~'iOl4: 4:37 PM . . . . . To~' GilllgaA·;·'Jlm (CIV). .':.., . . . '. . . . . . '. . .
· . Cc::Rick;Wiebe~·Stepha·nie:ShattuG:k;rhomas'E. Moore UI; Patton, Rodney (OV);'Oearinger, Bryan (OV); ·nanri·M:··M~azel .. ~.... . , . . . S~'bj~ct:)~e: ~!.~e~ation of. Evidence in Jewel v •. NSA.
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I assu~e' you\~e seell the HSC Order. Can you please explain hO\v the court could be under th~· misimpressiqn th~fthere are·no.prese~·vation orders for the telephone records infom1ation in place given the l}istory .. apewel and Hepting: before it? As you might expect. this is quite alarming to. u~~· .. ...... .
:We ~y.ifI be .. fll~~g ;omething.shortl)~ and .r .wantto be .s~lie that we, correctly state your position . . .
'Cindy
· Senf from"my phpne . " . . ' .
,On·Feb.2~·,.2914~. at 5;17. PM~9j:l1dy Cohn <[email protected]> wrote: • oJ 0 0", • I.'. ,.,' • ' • • •
'. . 0:' .Hi 'iiffi;' ..: .. :.' .. .' . .". ~. '
.. " .. We~il w~t a hit~assum·i~g.this doesn't.·drag 011 too,long, 'Thanks for responqing. · '. ,": " ", .' .' . " .. .. :. >: ·.GiridY· .'.: .' . o.
-i '"
: ". ·.·:Seni·~prn··i~y:phone
:. .'.' ··;:-.:O~ ~~~.::28/i6··14~ at ~;26 PM~ "C3i1Iigan: .TiIll (CIY)" <[email protected]~> .. ' .. >~~~~~<"; .. ". ' .. :'. .... ...... ". . ... : ...... v: .. . " .~.' ".::' .. :/~i·~~y, . .
' .. : :> 'Wed)q·r:e.ceive your e~ail about preservation, ~nd I ~anted to g~t back to .'., '.':. ,':you before the weekended to let you know that we will need a.bit more
' .. '.,: ~,!!e ~~:pr~p~r·ea ... m~re c~mpl~te:re~ponse than we will be able to ~o by '. . :' ... ' rVlQoday.· ;$0'1 wquld a~k that yq,u' forbear from filing anythingwith the . . " ;. '. . . 'F ISC:.or' Jud ge' wli i~e, ~ ntil we:h ave fuitner 'op po rtlll:\ity to confer .. As yo u .~ . . .'. ·.~pte~;)ewel a.nd:Shuber.t are n·ot.speClfically:me·~tion·ed In the·motion.we : :': . , ... "filed with the.FISC,··b·ut as.you als0 o.bserveo, the question of-preservation·
" ........ :: . . "h'~s' alr~aciy bee.n .litigated in those' cases, and th'e court issued' s~'parate · .. '.' .' .' ·p(eserVatlonorders that gQvern there: Many of the details surrounding ..' ., ..... " .' "th~' i~telligence. programs.in cjuestion remain classified; however,' and so . ' ... , ... : .:: ·: .. ··there'.remaill·limitatio·ns on ou'r ability to confer with you concernhig our '. . . ..... " .. ,! co~pli~nc::~ wit~ those orders.' . ' .
" " . .
.'.: : At.thispo·i~t 1 n'~~d to .~o~sult fu'~her with my clients to ~scert.ain. how . '.,' . .., .mti~h.informatiqo·+can convey toyolrabout-the Government's'
:..' ... jlres~rVatlon efforts without revealing classified information~· I si.mply ,;,.,: .<'. ':. wonl.tbe· i~.a p~sition to'pro~ide .you with a detailEldresponse to your
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".tas~3:~3'-cv-03?87-JSW Document86-6 Filed03/10/14 Page6 of 8
, :inquiry by Monday, as you'reque.st, in part: because of the work that remains on ,our reply to your brief on the court's four questions, and in Rart becayse I w.i.lLbe out 'of-the office on Monday and Tuesday for a family ·ski, trip'; (A'lso,' as you ob'served, Marcy is presently diverted by another, matter.) "~:ut we will do ourbesfto address your questions by the middle
, of next week.
'. JG ..
James J. Gilligan Spedal Qtlgatlon Counsel . Chiil Division, Federal ·P.rograms Branch
.. ' .. U.S; Oep'~rtmentof Justice : ' . , ·P:O. BOX8~3'"
Wasllington; O;C. ·20044 ' .. . :" Tel:" 202~Sl4:-33S8 " . ". . .
" : . .' .
~--- --- ,,-,- . -:.... . " .. ' '.' 'From: .andy COhn (mailto:[email protected]) . ,:' Sent: Fric;lay, Febru~ry 28, .2014 5:54 PM
., .. To':' Gilligan;, Jim (OV) . CC:. RiCk Wiebe; Stephanie' Shattuck; Thomas E. Moore III; 'Patton, Rodney
.-' (oy);;Deariqger, Bryan (CIV); Uann"M. Maazel . .... '. Subj~ct: ,Re~ PreserVation of Evidence in Jewel v. NSA .. ' '. ' . , .. ' .. '.'
: ' .'.'. ":: .' ;HUim~'Rod(~eY'and Bry~n, . . .... . . ""'., .'........ ':." .. . , "' .... :. ,":/IJi:Jst wai!t¢dto,conflrm'that you 'received' this and. learn \vhc:n'yo~ will
· :. 'be, 'respoi1ding~' ..' , ',' , . . . ....' ~ .
',:' ':·We:.arepl~il~g ~o ·file something'i,n the 'FISC and before Judge . .. : :.·Walker:early next weekandI do want to \Je able to accurately convey
. : .' · . ':: y~Uf position.' . . . · ..' .... _ .. . . . . ....
: ,Thri~lk~~ .-..... '" .::
.. ".. ': .... :.::': On Feb 26~ ~014, at ~k08 PM, ~indy Cohn <[email protected]> \\'t0te: • .'. • • " ~ ':.' • • • '. '.... ...' '. • I
· ", ". ': .... :. : . .-.;. ': '~kJim,
". ". . ,', "'.
. .' ,". ': . .- ; Rick ,.will \vdte 'you 'separatdy aboutthe scheduling, but I wanted to : '.:.... .....~.-raJse- $ornelliing that has confused us and to seek "clal'itlc.aticin. '. '. t.' : ,' ..... : .•• '.' . .' • ' .. '. .
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Case3:·~3-~v.-03287-~SW DbGument86-6 'Filed03/10/14 . Pag~7 of 8
" .
Wes~~ your filing in the FISC asking thal the Court's current Primary .Order be amended to authQlize the preservation and/or storage of call detail recqrds b¢yond five years based upon your duty to preserve evidence and nientioning the First Unitarian case specitically. We do agree that the governri1.ent has a duty to preserve all reasonably antiCipated to be subjecllo discovei-y in this action. We were
'.: surprfsed, hO\v~ver, t~atyou did not approach LIS to disclIss ways that ·this duty could be met shOlt of the request you made. which we read as allowing you to preselve all of the metadata you have collected .
. :". :W,e. also:~rit~ b.ecause, as 1 think you know, the go;vcl11ment has been '. .. '~nder an obligatiOll to.preselve telephone records i~ has coUecte~t'since " 'i006, \vhett:the cases tliat ninde tip the'MOL action In Re NSA 'were
., ~ (Jrst'flleq~' ·.One· 'of those .cases. Shu belt v. Obama,' h~ remained . . .... ongoing si!~.cethat time. T.llat.obligati~n was reiriforced by. an Order
'.' .;'. issued. by Jl;1dge 'Walkerin 2007 and order'was specifically adopted by :: the courtin JeweJ'.v. NSA in 2009 by a joint request by the'government
... and the pla~ritiffs (Jewel v. NSA, Doc. 51). . . . . ,', ", " .... . .. ' .. Thus my' cJ>~fu~iOli ... Till not '~ute: why the Jewel (and $hubert) cases
". .:were·ri6tmention~d:pr.r.eterenced ill th~'request to th~ FISC since both > .., • ::.:. of those· also contain ongoing presetvation obligaiibnS"l'elated' to the . • .<: .. 'bulk p'h~meTecol'ds collection by the·NSA. Since they were I'lOt, it also
. ··raises.·the:questlon of\vhether and how the government has been . . .. '.' abiding: by .its obligation tp prcselve evidence in those t\vo cases; since
. : ..... obviously both. ~ave been pending for mcii'e than nyC years. . .. .. . ,
'" '
:. .' .. [ would ~ppreciate'aprbmpt response aild clarification. l'nl(~oiltidellt .'. . ~ .: '.' :: ..... that )he':g~verrim~nt takes 'seriousty its obligation to preserve evidence. :. " :-:.'. :::. . '.' ·that m.ay 'be re·l.evant to.pend)ng 'Iitigation, but given the situation. I
.: .... , .... '. ,·\~oul~like~. SpeCific reaffirmation that bulk telephone records " ... ' ...... '. co.ll~cted by the NSA'have been"preserved in the Jewel case and.I
. : . . ... ':" ::- suspect Il~l is :co['!cerned aboutthe same tor Shubert. I would also ; ... < ... '. :.; 'request' some more specific intonnatiol1 about hO\V' that prese~vation
. '.: ". . haS o~~ur.red -;-. similar.to the'pl~n you suggested to the FISC jl1 your '. ':, 'mQtiOli~" .. '. '.: .... . . '... . . .
:' ..•.. [ hope you .. can provide us with a thorough response before any '. . ..... addi~oil~'r.'plJOne. records atc destroyed and hopefully by Monday,
.... ," :'::~.' :··March 3;' While we're hopctlil tha~ we wi)1 rece.i~e a satisfactory. . '.' ''':::. ~ ... r~sp.ohse, bud(not~'~ve do intenq to. ffiise this ques~ion \vi~both t!le . . . : .... '.: :"::FISC'ano the :Judge. White. .
: ~.. .' ".' . ." ... ' . .:'.... . ,
: . . '.' Thank{.,·;
:" ...... . ", . ':", .. '. ';
. . ~"':",:. .: : .:. . . . .... : . ,"." .. '
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.. ' .. . ,' .... : .. ::.::. :~< Ca.S·e3:13-Cv~Q328.7-jSW. Doc'ument~6-6 Filed03/10/14 .'PageS of 8
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". . ,:
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I •
.. PS:,Has Marcy, gone? I noticed that she's not on the pleadings you fiI~d ~ast,\Veek or on,this message. '
•••• ,1 •••••• ~ ................ ~ ........................... ••
Cindy Cohn legal Director
, EI~ctronic Frontier Foundation : 815 Eddy Street · San FranCiscO. 'CA ~4 1'09 '
" ,(41~) ,436·9333 ~108 ' ' ~.;[email protected] .
'. ~--,·ww:w.~ft.org.' . :.
· J.oin·:EFFI bltpS:/lsupporters.eff,om/dgnate
.... . ..... :
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• .......... ~ .......... " .. ,1 ..................................... ,.. ••••
Cll?l,ly Co~n·. : ~a1 Director "
, Section Ie frontier Foundation ; .• 8~5 ~~dy'S~reet: ,,'. . ' , . San.Franclsec. CA' 941 09 , . (415):436.~~ X1~8
-,[email protected]'riJ · _. WWw.eft:om ... " .....
'. ,JC?,iri, ~~F.r https:lIsup9,9rters.eff.org/donate = .. ' '.":.. > ~ .. ' .... :: ': . . .' -.
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Case3:l3-cv-03287-JSW Document86-7 Filed03/l0/l4 Pagel of 3
CINDY COHN (SBN 145997) [email protected]
2 LEE TIEN (SBN 148216) KURT OPSAHL (SBN 191303)
RACHAEL E. MENY (SBN 178514) [email protected] PAULA L. BLIZZARD (SBN 207920) MICHAEL S. KWUN (SBN 198945)
3 JAMES S. TYRE (SBN 083117) MARK RUMOLD (SBN 279060)
AUDREY WALTON-HADLOCK (SBN 250574) BENJAMIN W. BERKOWITZ (SBN 244441) JUSTINA K. SESSIONS (SBN 270914) 4 ANDREW CROCKER (SBN 291596)
ELECTRONIC FRONTIER FOUNDATION KEKER & V AN NEST, LLP 5 815 Eddy Street 633 Battery Street
San Francisco, CA 94109 6 Telephone: (415) 436-9333
Fax: (415) 436-9993
San Francisco, CA 94111 Telephone: (415) 391-5400 Fax: (415) 397-7188
7 RICHARD R. WIEBE (SBN 121156)
8 [email protected] THOMAS E. MOORE III (SBN 115107) [email protected]
LAW OFFICE OF RICHARD R. WIEBE 9 One California Street, Suite 900
San Francisco, CA 94111
ROYSE LAW FIRM, PC 1717 Embarcadero Road Palo Alto, CA 94303
10 Telephone: (415) 433-3200 Fax: (415) 433-6382
Telephone: (650) 813-9700 Fax: (650) 813-9777
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Counsel Jor PlaintiffS
ARAM ANTARAMIAN (SBN 239070) [email protected] LAW OFFICE OF ARAM ANT ARAMIAN 1714 Blake Street Berkeley, CA 94703 Telephone: (510) 289-1626
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
) CASE NO. 08-CV -4373-JSW CAROLYN JEWEL, TASH HEPTING, ) YOUNG BOON HICKS, as executrix of the ) estate of GREGORY HICKS, ERIK KNUTZEN) [PROPOSED] TEMPORARY and JOICE WALTON, on behalf of themselves ) RESTRAINING ORDER and all others similarly situated, )
) Hon. Jeffrey S. White Plaintiffs, ) Courtroom 11 - 19th Floor
) ~ )
) NATIONAL SECURITY AGENCY, et al., )
) Defendants. )
Case No. 08-CV-4373-JSW [PROPOSED] TEMPORARY RESTRAINING ORDER
Case3:13-cv-03287-JSW Document86-7 Filed03/10/14 Page2 of 3
1 This matter is before the Court on plaintiffs' motion for a temporary restraining order to
2 prevent defendants National Security Agency, United States of America, Department of Justice,
3 Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their
4 official capacities) (collectively, the "government defendants") and all those in active concert or
5 participation with them from destroying any potential evidence relevant to the claims at issue in
6 this action, including but not limited to prohibiting the destruction of any telephone metadata or
7 "call detail" records. The government defendants have given notice that they will commence
8 destroying call detail records on Tuesday morning, March 11, 2014. ECF No. 85 in First
9 Unitarian Church of Los Angeles v. NSA, No. 13-cv-3287-JSW.
10 Plaintiffs contend that the Court's prior evidence preservation order (ECF No. 51) as well
11 as defendants' obligations under the Federal Rules of Civil Procedure prohibit destruction of this
12 potential evidence. It is undisputed that the Court would be unable to afford effective relief to
13 plaintiffs once the records are destroyed, and therefore the hann plaintiffs face is irreparable. A
14 temporary restraining order is necessary and appropriate so that the Court may decide whether the
15 evidence should be preserved with the benefit of full briefing and participation by all parties.
16 It is hereby ordered that defendants National Security Agency, United States of America,
17 Department of Justice, Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R.
18 Clapper, Jr. (in their official capacities), their officers, agents, servants, employees, and attorneys,
19 and all those in active concert or participation with them are prohibited, enjoincd, and restrained
20 from destr~ying any potential evidence relevant to thc claims at issue in this action, including but
21 not limited to prohibiting the destruction of any telephone metadata or "call detail" records,
22 pending further order of the Court. The Court detennines that no security is necessary under the
23 circumstances.
24 The Court sets the following briefing and hearing schedule in this matter:
25 Plaintiffs' opening brief
26 Government defendants opposition brief
27 Plaintiffs' reply brief
28 Hearing
Case No. 08-CV-4373-JSW 1 [PROPOSED] TEMPORARY RESTRAINING ORDER
Case3:13-cv-03287-JSW Document86-7 Filed03/10/14 Page3 of 3
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Entered at __ a.m.lp.m. on March __ , 2014
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
Case No. 08-CV-4373-JSW 2 [PROPOSED] TEMPORARY RESTRAINING ORDER
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Case3:l3-cv-03287-JSW Document89 Filed03/l0/l4 Pagel of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
CAROL YN JEWEL, ET AL.,
Plaintiffs,
v.
NATIONAL SECURITY AGENCY, ET AL.,
Defendants .
FIRST UNITARIAN CHURCH OF LOS ANGELES, ET AL.,
Plaintiffs,
v .
NATIONAL SECURITY AGENCY, ET AL.,
Defendants.
--------------------------------,
No. C 08-04373 JSW No. C 13-03287 JSW
ORDER GRANTING TEMPORARY RESTRAINING ORDER
This matter is now before the Court on Plaintiffs' ex parle motion for a temporary
restraining order requesting immediate relief. The Court HEREBY ORDERS that its prior
evidence preservation orders in these related matters shall be enforced. It is undisputed that the
Court would be unable to afford effective relief once the records are destroyed, and therefore
the harm to Plaintiffs would be irreparable. A temporary restraining order is necessary and
appropriate in order to allow the Court to decide whether the evidence should be preserved with
the benefit of full briefing and participation by all parties.
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Case3:13-cv-03287-JSW Document89 Filed03/10/14 Page2 of 2
Accordingly, it is HEREBY ORDERED that Defendants, their officers, agents, servants.
employees, and attorneys, and all those in active concert or participation with them are
prohibited, enjoined, and restrained from destroying any potential evidence relevant to the
claims at issue in this action, including but not limited to prohibiting the destruction of any
telephone metadata or "call detail" records, pending further order of the Court. The Court
determines that there is no security necessary under the circumstances.
The Court sets the following briefing and hearing schedule, all in PST, in this matter:
Plaintiffs' opening brief shall be filed no later than March 13, 2014 at 2:00 p.m.
Defendants' opposition brief shall be filed no later than March 17, 2014 at II :00 a.m.
Plaintiffs' reply brief shall be filed no later than March 18, 2014 at 2:00 p.m.
The hearing on this issue shall be set for March 19,2014 at 2:00 p.m.
IT IS SO ORDERED.
Dated: March 10, 2014
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